Nelson v. Nelson

1998 OK 10, 954 P.2d 1219, 69 O.B.A.J. 452, 1998 Okla. LEXIS 12, 1998 WL 64057

Opinions

¶1 KAUGER, Chief Justice:

¶ 2 Two issues are presented: 1) whether Administrative Order CV-95-1¹ and 43 O.S. Supp.1997 § 107.2² which require divorcing parents with children to attend classes intended to help minors to cope with divorce are constitutional; and 2) whether, under the facts presented, the husband was entitled to have his timely-filed motion to vacate sustained. We find the administrative order and the statute do not violate constitutional standards of equal protection or due process nor do they constitute a prohibited delegation of the legislative authority. However, the cause must be reversed in part, because the father did not have notice that his rights to visitation were in jeopardy. Under the facts presented, the trial court abused its discretion by refusing to vacate the default judgment. The cause is remanded and the trial court is ordered to consider the father’s application for visitation.

FACTS

¶3 On July 19, 1996, the plamtifi/appel-lee, Debbie D. Nelson (wife/mother), served the defendant/appellant, Richard E. Nelson (husband/father), with a petition for divorce. In the petition, the wife sought: custody of the couple’s two minor children with the husband to have “reasonable visitation”; an award of child support and child care expenses computed in accordance with .the Oklahoma Child Support Guidelines, 43 O.S. Supp.1995 § 118, et seq.; medical insurance and payment of a portion of any unpaid medical expenses of the children; an equitable division of marital property and debt; and attorney fees and costs. Because the husband believed that he and his wife were in the process of settling the issues presented in the divorce proceeding, he did not hire an attorney or file an answer.

¶ 4 Finding the husband in default, the trial court granted the divorce on November 4, 1996. Under the decree, the wife was given custody of the minor children, and the husband was denied visitation based on his failure to attend the course, “Helping Children Cope with Divorce.”³ The husband was ordered to pay $611.16 monthly for child support and sixty-six percent of any child care expenses. He was also required to provide medical insurance for the children and to pay á portion of any uncovered medical expenses. The decree divided marital property between the parties and awarded the wife $5,000.00 in lieu of alimony as property division. Each party was directed to discharge the debt on vehicles awarded as their separate property. Finally, the husband was ordered to pay the wife’s attorney fee of $550.00. It is undisputed that the only pleading served on the husband was the petition. In that filing, there was nothing to put the husband on notice that he could be denied visitation with his children.

¶ 5 On November 27, 1996, the husband filed a motion to vacate the judgment and decree of divorce.⁴ He asserted that: he did not file an answer because he believed that the property and child support issues would be settled; the child support awarded exceeded provisions of the Oklahoma Child Support Guidelines, 43 O.S. Supp.1995 § 118, et seq.; the division of property and debt was inequitable; and the decision to deny visitation based on his failure to attend the parenting seminar violated his right of association with his children and was not based on a consideration of the children’s best interests.

¶ 6 A hearing on the motion to vacate was held on December 30,1996, in which the husband requested that the decree be set aside as to all matters except for the portion of the judgment granting the parties’ divorce. At the hearing, the husband acknowledged that he knew that he was required to attend the Children Coping With Divorce Seminar and that, after the decree was entered, he completed the course.⁵ All attempts of the husband to offer evidence on the actual value of the marital estate were overruled. The trial court did accept evidence of the husband’s income. Nevertheless, this information was not considered in adjusting the child support obligations. Instead, the wife was ordered to prepare an order nunc pro tunc removing child care expenses from the amount of child support originally ordered. On March 4, 1997, an order was entered designating the husband’s child support obligation at $409.86 rather than $611.19 and requiring him to pay sixty-six percent of any employment-related child care expenses.

¶7 The husband appealed and he requested that the cause be retained to address the constitutionality of Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2. The motion was granted on April 25,1997. Family and Children’s Services, Inc. was given leave to file an amicus brief on May 29,1997,⁶ and the husband’s final response was filed on June 27,1997.

I

¶ 8 ADMINISTRATIVE RULE CV-95-1 AND 43 O.S. SUPP.1997 § 107.2 DO NOT DENY DIVORCING PARENTS WITH MINOR CHILDREN DUE PROCESS OR EQUAL PROTECTION NOR DO THEY CONSTITUTE A PROHIBITED DELEGATION OF THE LEGISLATIVE AUTHORITY.

¶ 9 The husband argues that Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2, requiring the divorcing parents of a minor child to attend educational programs relating to the impact of divorce on a couple’s children, are unconstitutional on equal protection and due process grounds. The wife and amicus curiae assert that neither the order nor § 107.2 violate constitutional standards.

"... Q With regard to — were you made aware that you were to attend the Children Copying [sic] With Divorce seminar?

A Yes.

Q And have you now done that?

A Yes....”

¶ 10 The issue of the constitutionality of statutes similar to Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2 is one of first impression in Oklahoma and in the nation.⁷ In other areas relating to divorce, state-enacted restrictions have been upheld, i.e., a one-year residency condition for maintaining an action for divorce,⁸ and a waiting period between the time of filing and the entry of the final decree.⁹ Additionally, there are established standards for the consideration of statutory enactments attacked on constitutional grounds.

A. Equal protection.

¶ 11 The equal protection clause of the fourteenth amendment requires that no state “deny to any person within its jurisdiction the equal protection of the laws.”¹⁰ Due process protections encompassed within the Okla. Const. Art. 2, § 7¹¹ are coextensive with those of its federal counterpart. The United States Constitution and the Oklahoma Constitution each contain built-in anti-discrimination components which afford protection against unreasonable or unreasoned classifications which serve no important governmental interests.¹² The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7.¹³

¶ 12 There is a strong presumption which favors legislative enactments. A statute will be upheld unless it is clearly, palpably, and plainly inconsistent with fundamental law.¹⁴ In testing the validity of a state statute which differentiates in treatment of one class paralleled with its treatment of another class, the statute is immune to an equal protection attack if the basis for the differentiation is neither arbitrary nor capricious, and it bears a reasonable relationship to a legitimate aim.¹⁵ The Fourteenth Amendment does not require that equal protection be measured by exact equality of classification.¹⁶ It does require that the classification rest on bona fide, not feigned differences, that the distinction have some relevance to the purpose for which the classification is made; and that the different treatments are not arbitrary.¹⁷ Unless a classification jeopardizes the exercise of a fundamental right or it makes a classification on an inherently suspect characteristic, a classification which rationally furthers a legitimate state interest will withstand an equal protection challenge.¹⁸

¶ 13 Administrative Order CV-95-1 and § 107.2 make a single distinction — parents, or persons standing in the parental role, who invoke the jurisdiction of the court in an action which will alter the character of the parental unit may be required to take an educational course intended to lessen the impact of the change on minor children — if minor children are not involved, the requirement does not apply. Recognizing the harmful impact of divorce on children and in attempt to minimize the involvement of minors in parental conflict,¹⁹ statutes similar to the order and to § 107.2 have been enacted in a number of jurisdictions.²⁰

¶ 14 States may seek to protect and facilitate the parental bond through parental participation,²¹ and they have a strong, traditional interest in setting the terms of and procedures for marriage and divorce.²² The courses mandated by the order and by § 107.2 are educational and cover topics specifically related to children who are members of families experiencing divorce or other disruption of the family unit. Neither the statute nor the administrative order provide that failure to attend the course will result in visitation or custody being denied.²³ Rather, to the extent that the requirement places a duty on divorcing parents with minor chil dren which is not carried by persons without minor children, the distinction is justified by today’s alarming divorce rates and the concurrent impact on our children. It reasonably relates to the government’s legitimate concern that the best interests of minor children of divorcing families be served. We find that Administrative Order CV-95-1 and 43 O.S. Supp.1997 § 107.2 are not unconstitutional on equal protections grounds.²⁴

B. Due process.

¶ 15 The husband’s due process attack on CV-95-1 and on § 107.2 is procedural ²⁵ — relating to his lack of notice — and substantive,²⁶ concerning the burden attending an educational course relating to the impact of divorce on minors bears on his parental rights. We agree that the husband did not receive notice sufficient to appraise him that his visitation rights might be in peril.²⁷ We also agree that a parent may not be penalized for failure to attend courses mandated either by the administrative order or by the statute absent notice that completion of the course is required. However, this Court will not assume that simply because here the husband did not receive adequate notice that parties generally will not be advised of the obligation to complete the educational courses.

¶ 16 The husband’s constitutional attack on CV-95-1 and § 107.2 on substantive grounds centers on an argument that, absent some jeopardy to the health or safety of children, the government may not intrude in the familial relationship and require parents to attend the mandated educational courses. However, in. determining whether the order or the statute constitute a substantive due process violation, a balance must be struck between the right protected and the demands of society.²⁸ We recognize that the relationship of parents to their children is a fundamental, constitutionally protected right.²⁹ However, the liberty interest of the parent must be balanced against the best interests of the child. In this arena, the child’s interest are paramount³⁰ and the parents rights are a counterpart of the responsibilities they have assumed.³¹ Unquestionably, the state has a constitutional right to declare and maintain a policy regarding marriage and divorce concerning persons domiciled within its borders.³² The Legislature’s enactment of § 107.2 and the district court’s adoption of CV-95-1 is a recognition that children are impacted socially, emotionally and economically by divorce.³³ The extent to which a parent may be inconvenienced by attendance at the educational seminars is subordinate to the need to protect the child’s welfare. In addition, the requirement to attend the class or seminar creates no burden on the parent’s right of association with the child. We find that neither Administrative Order CV-95-1 nor 43 O.S. Supp.1997 § 107.2 are unconstitutional on procedural or substantive due process grounds.

C. Delegation of legislative authority.

¶ 17 The husband’s final attack on 43 O.S. Supp.1997 § 107.2 and on Administrative Order CV-95-1 centers on an argument that the statute and the rule provide for an unauthorized delegation of the legislative authority in violation of the Oklahoma Constitution art. IV, § 1³⁴ and art. V, § 1³⁵, because the courts are allowed to make rules to carry out the policy announced by the provision. However, this argument is unpersuasive. The language of § 107.2(a) provides standards for the kind of educational course which is mandated. Subsection (b) merely authorizes the courts to implement local rules governing the program the Legislature has required.³⁶

¶ 18 Additionally, neither the statute nor the administrative order are result determinative. Unquestionably, the relationship of a parent to a child is a constitutionally protected right.³⁷ We agree that an administrative order may not take away or infringe on rights guaranteed by the constitution.³⁸ However, neither § 107.2³⁹ nor CV-95-1⁴⁰ require that visitation be denied for failure to attend the mandated seminar. Rather, it is clear that the standard for determining visitation rights remains the “best interest of the child.”⁴¹ Administrative Rule CV-95-1 specifically provides only that a party’s failure to attend the parenting seminar may be considered as “a factor in determining the best interest of the child.” The rule was not followed here in making a decision on the husband’s rights to visitation. In drafting-local rules, judicial districts must keep in mind: 1) the purpose of the seminar—to educate the parties on the impact on children; ⁴² and 2) a visitation schedule that will serve the best interest of the minor child.⁴³ Trial courts remain vested with the discretionary authority to determine the child’s best interest.⁴⁴

II.

¶ 19 UNDER THE FACTS PRESENTED, THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO VACATE THE DEFAULT JUDGMENT.

¶ 20 The father asserts that although he was served with the petition, he was not aware that he could be denied visitation with his children or that a money judgment could be entered against him.⁴⁵ The wife argues that because the husband was properly served with the petition, he had notice of the proceedings and that he may not assert a lack of procedural due process. Although we disagree that the husband lacked notice his wife was seeking a property division,⁴⁶ we agree that he was not advised that his visitation rights were in jeopardy.

¶21 It is elementary and fundamental that “due process of law” encompasses more than a party’s right to be heard. It begins with a party’s right to notice of the pendency of an action and of the nature of any relief sought47 Here, it is undisputed that the husband was served with the petition and that it provided that he was to have “reasonable visitation” with his children.⁴⁸ Nevertheless, the default decree denied visitation.

¶22 The mother argues that the husband had constructive notice that his visitation rights were at issue by virtue of the existence of Administrative Order CV-95-1 requiring him to attend the seminar, “Children Coping with Divorce.” Although it appears that the husband was, aware of the order and of the requirement that he attend the class,⁴⁹ nothing in the order advised him that failure to attend the course could result in a complete denial of visitation with his children. Rather, the clear language of the order indicates that failure to successfully complete the seminar may be considered as “a factor” in determining the best interest of the child.⁵⁰ There is nothing in the record indicating that based on the “best interest of the child” standard, the husband should have expected that his right to visitation would be barred. The husband’s fitness as a parent was never questioned. Indeed, the mother admits that it was not a determinative factor in the decision to deny visitation.⁵¹

¶ 23 Because litigants are entitled to a fair day in court, policy encourages actions being tried on the merits. Default judgments are not favored.⁵² , Nevertheless, a decision to vacate rests in the sound legal discretion of the trial court and it will not be disturbed on appeal absent an'abuse of discretion.⁵³ Decisions to vacate depend on the facts and circumstances of each individual case.⁵⁴ In determining whether there has been an abuse of discretion, we have held that to the extent a default judgment exceeds the relief requested in the petition, the judgment is void.⁵⁵ Here, nothing in the petition, in Administrative Order CV-95-1, or in the settlement negotiations with the wife,⁵⁶ put the husband on notice that his visitation rights were in jeopardy. We find that, under these facts, the trial court abused its discretion by failing to vacate the default judgment.

CONCLUSION

¶ 24 Only in exceptional cases should a parent be denied the right to visit his or her minor child.⁵⁷ The standard used by the Legislature and by this Court as a test for granting or withholding visitation is the “best interest of the child.”⁵⁸ However, neither Administrative Order CV-1-95 nor 43 O.S. Supp.1997 § 107.2 alter that standard or provide that failure to attend the mandated educational courses will result in visitation being denied. The classification established by the order and by the statute rest on a real and vital difference — parties seeking divorce who have minor children and those who do not. The different treatment is not arbitrary and it relates to the state’s legitimate interest in protecting children of divorce. The difference in treatment does not violate due process or equal protection standards. Nevertheless, under the facts presented, the husband was denied due process of law when his visitation rights were abrogated without notice that access to his minor children was in jeopardy. Under these facts, the trial court abused its discretion by denying the husband’s motion for relief.

¶25 The cause is remanded and the divorce decree is reversed and remanded for further proceedings insofar as it denies the husband visitation.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SUMMERS, V.C.J., and HODGES, LAVENDER, ALMA WILSON and WATT, JJ., concur. OPALA, J., with whom SIMMS, J., joins, concurs in part and dissents in part. HARGRAVE, J., dissents.

Footnotes

1

. Administrative Order CV-95-1, adopted by the District Court for the 11th Judicial District, on May 12, 1995, provides in pertinent part:

"... Section 1. This rule applies to all parties in all divorce, separate maintenance, guardianship, paternity, custody or visitation actions; or any modifications or enforcement of a prior court order in these actions, excluding domestic violence actions, filed on or after June 1, 1995, where the interests of children under 18 years of age are involved. The rule may be applied to all cases pending as of June 1, 1995 at the judge’s discretion.

Section 2. All parties to such action shall successfully complete the seminar entitled 'Helping Children Cope with Divorce’.... Section 5. Upon a party’s failure to successfully complete the seminar pursuant to this rule, the judge assigned to the case may take appropriate action, including but not limited to the following:

a.The Court may decline to hear the petition, application, motion or other request for relief of the party who fails to attend;

b. The Court may consider a party's failure to attend as a factor in determining the best interest of the child; and

c. The Court may hold the party who fails to attend in contempt....”

2

. Title 43 O.S. Supp.1997 § 107.2 provides:

"A. In all actions for divorce, separate maintenance, guardianship, paternity, custody or visitation, including modifications or enforcements of a prior court order, where the interest of a child under eighteen (18) years of age is involved, the court may require all adult parties to attend an educational program concerning, as appropriate, the impact of separate parenting and coparenting on children, the implications for visitation and conflict management, development of children, separate financial responsibility for children and such other instruction as deemed necessaiy by the court. The program shall be educational in nature and not designed for individual therapy.

B. Each judicial district may adopt its own local rules governing the program.”

Even though § 107.2 was enacted subsequent to the rulings of the district court, the husband, the wife and amicus curiae request that the Court consider its constitutionality.

3

. Paragraph 6 of the decree provides:

"6. That the plaintiff is a fit and proper person to be and is granted primary custody of said minor children. Defendant having failed to attend the course, ('Helping Children Cope with Divorce’), visitation is denied and upon completion of the course and application for visitation, the visitation rights of the non-custodial parent will be considered and if appropriate afforded.”

4

. Title 12 O.S. Supp.1994 § 1031.1 provides in pertinent part:

"... B. On motion of a party made not later than thirty (30) days after a judgment, decree or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk, the court may correct, open, modify or vacate the judgment, decree or appealable order....”

5

. The transcript of proceedings, December 30, 1996, provides in pertinent part at p. 18:

6

. The single issue presented in the amicus brief concerns the constitutionality of 43 O.S. Supp. 1997 § 107.2, see note 2, supra, and Administrative Order CV-95-1, see note 1, supra.

7

. Our research reveals no decisions in any jurisdiction on the issue and none are cited in the parties’ briefs.

8

. Sosna v. Iowa, 419 U.S. 393, 405, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975).

9

. People v. Connell, 9 Ill.2d 390, 137 N.E.2d 849, 851, 62 A.L.R.2d 1255 (1956).

10

. The United States Const., amend. XIV.

11

. The Okla. Const, art. 2, § 7.

12

. DuLaney v. Oklahoma State Dept. of Health, 1993 OK 113, 868 P.2d 676, 685; Fair School Finance Council v. State, 1987 OK 114, 746 P.2d 1135, 1148.

13

. Fair School Finance Council v. State, see note 12, supra; McKeever Drilling Co. v. Egbert, 1935 OK -, 170 Okla. 259, 40 P.2d 32, 35; Callaway v. City of Edmond, 1990 OK CR 25, 791 P.2d 104, 106.

14

. Abrego v. Abrego, 1991 OK 48, 812 P.2d 806, 810; Turley v. Flag-Redfern Oil Co., 1989 OK 144, 782 P.2d 130, 173, Black v. Ball Janitotial Serv., Inc., 1986 OK 75, 730 P.2d 510, 512; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, 679 P.2d 1296, 1300; Kimery v. Public Serv. Co., 1980 OK 187, 622 P.2d 1066.

15

. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985); Abrego v. Abrego, see note 14, supra; Turley v. Flag-Redfern Oil Co., see note 14, supra; Kirk v. Board of County Comm'rs, 1979 OK 80, 595 P.2d 1334, 1336-37.

16

. Norvell v. Illinois, 373 U.S. 420, 423, 83 S.Ct. 1366, 1368, 10 L.Ed.2d 456, 459 (1963); Abrego v. Abrego, see note 14, supra; Turley v. Flag-Redfern Oil Co., see note 14, supra.

17

. Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660, 665 (1954); Special Indem. Fund v. Bedford, 1993 OK 60, 852 P.2d 150, 155.

18

. McGowan v. State of Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961); Association for Equitable Tax. v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, 806. See also. Madden v. Commonwealth of Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed. 590, 593 (1940).

19

. L. Elrod, "A Review of the Year in Family Law,” 28 Fam.L.Q. 541, 560 (1995); J. Kerr, "Effort Stalls in State Legislatures to Roll Back No-Fault Divorce Laws,” 9-16-96 West.L.N. 9702 (1996); W. Fitzgerald, "Maturity, Difference, and Mystery: Children's Perspectives & The Law,” 36 Az.L.R. 11, 109 (1994).

20

. Mont.Code Ann. § 40-4 — 226 (1997); Colo. Rev.Stat. § 14-10-123.7 (1997); Del.Code Ann. Tit. 13 § 1507 (1996); Conn. Gen.Stat. Ann. § 46b-69b (1994); Fla. Stat. Ann. § 61.13(2) (1994); Iowa Code Ann. § 232.116 (1994); N.H.Rev.Stat. § 458-d (1993); Utah Code Ann. § 30-3-7 (1994).

21

. Hodgson v. Minnesota, 497 U.S. 417, 484, 110 S.Ct. 2926, 2963, 111 L.Ed.2d 344 (1990). See also, Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968).

22

. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 904, 106 S.Ct. 2317, 2322, 90 L.Ed.2d 899 (1986); Sosna v. Iowa, see note 8, supra; Williams v. North Carolina, 317 U.S. 287, 303, 63 S.Ct. 207, 143 A.L.R. 1273, 87 L.Ed. 279 (1942).

23

. See Administrative Order CV-95-1, note 1, and 43 O.S. Supp.1997 § 107.2, note 2, supra.

24

.Neither is the classification made between divorcing couples with children and those without in violation of the Okla. Const, art. 5, § 46 prohibiting the promulgation of special laws as the dissent asserts. A classification is not a prohibited, special law if it establishes a reasonable classification of persons, entities or things, sharing the same circumstances. Bethany v. Public Employees Relations Bd., 1995 OK 99, 904 P.2d 604, 615; State v. Goforth, 1989 OK 37, 772 P.2d 911, 914; Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 822-23. In the separate concurring opinion in Wagnon v. State Farm Fire & Casualty Co., 1997 OK 160, 951 P.2d 641, it was acknowledged that legislation relating to "discrete subclasses ... based upon identified distinguishing characteristics" would not be subject to art. 5, § 46’s prohibition against a special law. We have determined in our equal protection analysis that to the extent that a distinction is made— between divorcing couples and between divorcing parents — the distinction is justified. There is no "invidious underinclusion’'. Wagnon, supra. The law has a general operation on all parents covered by the class — they must attend educational courses related to children who are members of families experiencing divorce or other disruption of the family unit. This Court has never adopted uniform rules for the district courts. Although the issue of whether the promulgation of rules by individual district courts has never been addressed in this context, we have indicated that rules adopted by individual district courts in conformance with a statute would be upheld. See, State v. Whistler, 1977 OK 61, 562 P.2d 860, 862.

The dissent's assertion that the Administrative Order CV-95-1, see note 1, supra, and 43 O.S. Supp.1997 § 107.2, see note 2, supra, encroach upon the independence of the judicial decision making process is also unconvincing. Although the trial judge must order the parties to attend the educational course, a party’s failure to complete the seminar does not determine the outcome of the cause or the custody of the child. It does not change the trial judge’s duty to consider the minor’s best interests.

25

. Procedural due process requires an inquiry into the constitutional adequacy of the State's procedural safeguards. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990); Matter of Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155, 1159.

26

. The substantive component of the due process clause bars certain governmental action despite the adequacy of procedural protections provided. Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986); Matter of Adoption of J.R.M., see note 24 at 1160, supra.

27

. See discussion, pp. 1225-1227, infra.

28

. Youngberg v. Romeo, 457 U.S. 307, 320, 102 S.Ct. 2452, 2460, 73 L.Ed.2d 28 (1982); Matter of Adoption of J.R.M., see note 25 at 1160, supra.

29

. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639, 94 S.Ct. 791, 796, 39 L.Ed.2d 52, 60 (1974); Matter of Guardianship of S.A.W., 1993 OK 95, 856 P.2d 286, 289; Matter of Chad S., 1978 OK 94, 580 P.2d 983, 986.

30

. In re Bomgardner, 1985 OK 59, 711 P.2d 92, 97; Johnson v. Johnson, 1984 OK 19, 681 P.2d 78, 79-80.

31

. Matter of Adoption of Baby Boy D, 1985 OK 93, 742 P.2d 1059, 1065, cert. denied, 484 U.S. 1072, 108 S.Ct. 1042, 98 L.Ed.2d 1005 (1988).

32

. In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890); Umber v. Umber, 1979 OK 24, 591 P.2d 299, 301; Williams v. Williams, 1975 OK 163, 543 P.2d 1401, 1403, appeal dismissed, 426 U.S. 901, 96 S.Ct. 2220, 48 L.Ed.2d 826 (1976).

33

. Stake, "Mandatory Planning for Divorce,” 45 Van.L.Rev. 397, 408 (1992).

34

. The Okla. Const, art. IV, § 1 provides:

"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.”

35

. The Okla. Const, art. V, § 1 provides:

"The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.”

36

. See, City of Oklahoma City v. State, 1995 OK 107, 918 P.2d 26, 29-30; State v. Parham, 1966 OK 9, 412 P.2d 142, 150-51.

37

. Quilloin v. Walcott, see note 29, supra; Cleveland Bd. of Educ. v. LaFleur, see note 29, supra; Matter of Guardianship of S.A.W., see note 29, supra; Matter of Chad S., see note 29, supra.

38

. Cravens v. Corporation Comm'n, 1980 OK 73, 613 P.2d 442, 444.

39

. Title 43 O.S. Supp. 199 § 107.2, see note 2, supra.

40

. Administrative Order CV-95-1, see note 1, supra.

41

. Title 43 O.S.1991 § 111.1; 43 O.S. Supp.1997 § 112; In re Bomgardner, see note 30, supra.

42

. Title 43 O.S. Supp.1997 § 107.2, see note 2, supra.

43

. Title 43 O.S.1991 § 111.1; 43 O.S. Supp.1997 § 112.

44

. Mathews v. Grant, 1958 OK 150, 326 P.2d 1043, 1046.

45

. The husband also raises other grounds for reversing the refusal to vacate the default judgment including a lack of evidence to support the judgment and the trial court's refusal to consider evidence of his income in setting child support. His assertion that he was without notice that he could be subjected to a money judgment is not persuasive. The husband was served with the petition providing for a division of the parties' property. The wife was awarded $5,000.00 property division in lieu of alimony.

46

. The husband was served with the petition which provides in pertinent part:

"... 5. That during the marriage of the parties hereto, they have acquired certain real and personal property and indebtedness which should be fairly and equitably divided and distributed between the parties hereto....”

47

. Notice is a jurisdictional requirement and a fundamental element of due process. Due process requires adequate notice, a realistic opportunity to appear and the right to participate in a meaningful manner. The right to be heard is of little value unless a party is appraised of rights which may be affected by judicial process. Due process is violated by the mere act of exercising judicial power upon process not reasonably calculated to appraise interested parties of the pen-dency of an action. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-15, 70 S.Ct. 652, 656-57, 94 L.Ed. 865, 872-74 (1950); Bailey v. Campbell, 1991 OK 67, 862 P.2d 461, 469; Cate v. Archon Oil Co., 1985 OK 15, 695 P.2d 1352, 1356; Bomford v. Socony Mobil Oil Co., 1968 OK 43, 440 P.2d 713, 718. Lack of notice constitutes a jurisdictional infirmity. Bailey v. Campbell, see this note, supra; Cate v. Archon Oil, see this note, supra; Pointer v. Hill, 1975 OK 73, 536 P.2d 358, 361.

48

. The petition provides in pertinent part:

"... 12. That in the best interest of the minor children of the parties, Plaintiff should be granted custody of the minor children, with reasonable visitation with the Defendant....”

49

. See note, 5, supra.

50

. Administrative Order CV-95-1, see note 1, supra.

51

. Appellee’s Answer Brief, p. 10 provides in pertinent part:

"... Nelson's fitness as a parent was never at issue and was not a determinative factor in the decision to deny visitation to him. In the instant case, the trial court exercised its authority under the Administrative Order without so much of a degree of consideration as to Nelson’s fitness (or unfitness) as a parent. Had the Court felt that Nelson was unfit, it certainly would not have given him the opportunity to come before the court and show his seminar attendance to regain visitation with the minor children....”

Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record. Stork v. Stork, 1995 OK 61, 898 P.2d 732, 737; Reeves v. Agee, 1989 OK 25, 769 P.2d 745, 753; Womack v. City of Oklahoma City, 1986 OK 14, 726 P.2d 1178, 1181.

52

. Singleton v. LePak, 1967 OK 37, 425 P.2d 974, 977; Morrell v. Morrell, 1931 OK -, 149 Okla. 187, 299 P. 866, 868.

53

. Farm Credit of Wichita v. Trent, 1997 OK 70, ¶ 21, 943 P.2d 588 (1997); Hassell v. Texaco, Inc., 1962 OK 136, 372 P.2d 233, 235.

54

. Farm Credit of Wichita v. Trent, see note 53, supra; American Bank of Commerce v. Chavis, 1982 OK 66, 651 P.2d 1321, 1323; Midkiff v. Luckey, 1966 OK 79, 412 P.2d 175-76. See also, Bailey v. Campbell, see note 47, supra.

55

. Title 12 O.S. Supp.1996 § 2004 provides in pertinent part:

"... B. 2. A judgment by default shall not be different in kind from or exceed in amount that prayed for in either the demand for judgment or in cases not sounding in contract in a notice which has been given the party against whom default judgment is sought. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings....”

La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, 418 P.2d 949, 953.

56

. See note 3, supra.

57

. Harmon v. Harmon, 1997 OK 91, ¶ 4, 943 P.2d 599; In Re McMenamin, 1957 OK 67, 310 P.2d 381; Clark v. Clark, 1936 OK -, 177 Okla. 542, 61 P.2d 28.

58

. Title 43 O.S. Supp.1997 § 112; In Re Bomgardner, see note 30, supra.