NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
¶1 The issues before the Court are (1) whether Wife's appeal of the trial court's divorce decree was timely filed, and (2) whether the trial court's division of property in that decree was fair. We answer both questions in the affirmative.
BACKGROUND
¶2 Husband and Wife married in 1992. Husband filed for divorce in Tulsa County District Court in April 2019. The only disputed issues involve the division of property. In August 2020, after several months of discovery and with the advice of counsel, the parties agreed to mediation. Husband brought a spreadsheet to the meeting that listed proposed assets and liabilities. The mediator made handwritten amendments to the spreadsheet during the meeting. The parties agreed to the changes, and both parties signed the settlement agreement. The agreement valued the marital estate at just over $780,000: it provided that Husband receive assets valued at approximately $344,700, and Wife receive assets valued at approximately $435,600. Husband's attorney was to draft a decree memorializing the agreement. Wife's counsel subsequently informed Husband's counsel that Wife refused to honor the signed agreement. Soon thereafter, Wife's counsel withdrew from the case.
¶3 In September 2020, Husband filed a motion to enforce the mediation agreement. The Honorable James R. Huber, District Judge, set a hearing for mid-November. Wife hired new counsel, who entered an appearance in early October. Counsel's request for additional time to prepare was granted. The hearing was held December 9 and 16, 2020. The only witnesses called were Husband and Wife. Each presented documentary exhibits to support their respective arguments. The trial court's order granting the motion to enforce was filed in February 2021, and the court issued its Decree of Dissolution of Marriage in September 2021. Wife appeals the trial court's property division.
I. TIMELINESS OF THE APPEAL
¶4 Because the trial court's judgment was prepared by Husband's counsel, Husband was obligated to serve a copy of the judgment on Wife. 12 O.S. § 696.2when he sent it, or when Wife's counsel received it. The issue is whether any of this information -- obtained after the appeal was lodged -- matters.
Section 990A(A) of Title 12, Oklahoma Statutes, provides:
An appeal to the Supreme Court of Oklahoma, if taken, must be commenced by filing a petition in error with the Clerk of the Supreme Court of Oklahoma within thirty (30) days from the date a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court. If the appellant did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be served upon the appellant, and the court records do not reflect the service of a copy of the judgment, decree, or appealable order to the appellant within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the petition in error may be filed within thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was served upon the appellant.
12 O.S.2021, § 990A
¶5 Under this provision, if the party wishing to appeal also happens to have prepared the judgment, the 30-day clock begins on the date the judgment is filed with the court clerk. Otherwise, the appeal clock does not start until proof of service on the aggrieved party has been filed of record. There is a reward for promptness, however. If proof of service is filed within three business days of the filing of the judgment itself (as required by Section 696.2(B)), then the appeal start date is "backdated" to the earlier date. It is undisputed that Section 990A(A) applies to the type of judgment issued in this case.
¶6 In this case, the trial court's judgment was filed with the court clerk on September 10, 2021. It includes a certificate of service which, although signed by Husband's counsel, contains only blanks where the date of service would be inserted.
¶7 We directed the parties to address the timeliness of the appeal in more detail. Husband's counsel states that he mailed the judgment to Wife's counsel on September 13.the court record does not reflect that he did so, as Section 990A clearly seems to require. Wife's counsel says she received actual notice of the filing of the judgment on September 15. Relying on Tidemark Exploration, Inc. v. Good, 1998 OK 67967 P.2d 1194
¶8 We first consider whether Husband's incomplete certificate of service was sufficient to start the 30-day appeal clock under 12 O.S. § 990A
A. The certificate of service was not sufficient to trigger the 30-day window described in § 990A(A).
¶9 We must determine whether, under Section 990A(A), "court records [] reflect" that service was accomplished within three business days after the judgment was filed. The requirements for proof of service are found in Rule 2(b)(iii), Rules of the District Courts, 12 O.S.2021, Ch. 2, App., which provides in relevant part (with emphasis added):
Proof of service, whether made by delivery or mail, shall be made by the certificate of an attorney of record, or if made by any other person, by the affidavit of such person. Such certificate or affidavit shall set forth the name of the person served and the date, place and method of service, and it shall be filed with the court clerk or it shall be endorsed upon the pleading, motion or instrument that is filed with the clerk. ...
¶10 Fair notice is fundamental to the guarantee of due process. We have held that proof of service, when required, is a slight burden when balanced against that fundamental right. Brooks v. Baltz, 2000 OK 7312 P.3d 467See, e.g., Jackson v. Huddleston, 1964 OK 238397 P.2d 132
¶11 Wife contends that the timeliness of her appeal should be considered with reference to what is shown in the district court record as of the date the petition in error is filed, and not sometime after. We agree. From the trial court record available at the time Wife's petition in error was received by this Court, it simply is not clear when (indeed, if) Husband's counsel served a copy of the judgment on Wife. The fact that we now know he did, after receiving additional information from the parties, only underscores the problem with this Court's current practice of adjudicating the timeliness of appeals, which we discuss below. Because the district court record did not clearly reflect -- at the time Wife's petition in error was received by this Court -- that service was accomplished at all, we conclude that Wife's appeal is timely.
B. An aggrieved party's actual notice of the filing of an appealable order does not serve as a substitute for the obligations prescribed in 12 O.S. § 990A(A).
¶12 In several cases, this Court has departed from the language of Section 990A(A), and applied an "actual notice" test to determine if an appeal was timely filed. We now reconsider the rationale behind those cases.
¶13 Section 990A was amended in 1997 to include the language (excerpted above) at issue here. The current version makes record proof of service the trigger for starting the 30-day appeal clock. As noted above, if the party responsible for serving notice of the judgment files proof that he did so within three business days of the filing of the judgment itself, he shortens the appeal time, as the filing of the judgment becomes the starting point. Otherwise, the filing of proof of service is the starting point. The implication is that, if there is no proof of service in the trial record, then the 30-day appeal clock has not yet started.
¶14 This Court's first interpretation of the 1997 amendment was in Tidemark Exploration Inc. v. Good, 1998 OK 67967 P.2d 1194Tidemark, the order being appealed was pronounced by the trial court at a hearing where lawyers for both parties were present. Over the next few weeks, the lawyers discussed the content of the written order. Appellants' attorney approved a final version. Once appellees' attorney received it, he obtained the judge's signature on it, filed it, then mailed (and faxed) a copy of it to appellants' attorney. The order was filed October 31, 1997, mailed to appellant on November 3, and faxed on November 7. No proof of service was filed at that time.
¶15 The preceding facts surfaced only after the appellants in Tidemark filed their petition in error on March 17, 1998 -- over four months after the appealable order was filed. The lodging of the appeal was apparently prompted by the trial court clerk, who had sent a copy of the filed order to appellants on March 10. (A certificate of service, attesting to this fact, was attached to appellants' petition.) Appellees themselves did not file proof of service until March 23, 1998, almost a week after the petition itself had been filed. Appellees moved to dismiss the appeal as untimely. Relying on the text of Section 990A(A), appellants pointed out that the earliest record of service of the filed order was the court clerk's certificate on March 10, 1998 -- "the first and only certificate of service filed in the district court." Tidemark, 1998 OK 67
¶16 This Court dismissed the appeal as untimely. Despite the plain text of Section 990A, the majority rejected proof of service as the sine qua non for starting the 30-day appeal clock. To determine when the appeal time started, the Court considered (1) the date the judgment was filed, and (2) the date the appealing party received "actual notice" of the filing of the judgment -- something that cannot usually be determined by reference to the trial court record. In his dissent, Justice Summers (joined by Justice Hodges) noted that this approach departed from the plain language of the statute and wrote, "[t]his Court should not overrule the legislature except for constitutionally required reasons." Id. at ¶ 2, 967 P.2d at 1196 (Summers, J., dissenting).
¶17 Two noteworthy cases followed Tidemark. In Whitehall Homeowners Ass'n. Inc. v. Appletree Enterprise Inc., 2012 OK 34277 P.3d 1266trial record was silent on when proof of service was made, appellant's affidavit, received at the appellate level, could be considered to determine when actual notice was received. Appellee's allegation that it sent notice at an earlier date -- information contained only in a photocopy of a letter attached to appellee's motion to dismiss -- was not disputed, but deemed irrelevant.
¶18 State v. Cedars Group L.L.C., 2013 OK 99320 P.3d 2312 O.S. § 696.4Tidemark and Whitehall, no proof of service appeared in the trial record. When defendants filed their motions on May 20, plaintiff claimed they were out of time. Defendants argued that plaintiff's failure to file proof of service meant the 30-day clock for filing the motions had not yet started. At worst, they argued, the period should begin from when they received actual notice of the judgment.
¶19 The plaintiff in Cedars took Tidemark's actual-notice rule to a new level. Plaintiff argued that because defendants received actual notice within three business days of the filing of the judgment, their 30-day appeal clock should begin on the earlier date. In other words, plaintiff claimed, just as the party charged with providing proof of service is rewarded for filing same within three business days of the filing of the judgment, the party entitled to receive such notice should be penalized if he admits receiving actual notice within that same time frame. The trial court found the motions untimely, and the Court of Civil Appeals affirmed. While this Court ultimately found the motions timely under a statute inapplicable to appeals,Tidemark's holding that when the party responsible for providing proof of service fails to do so, the Court would reward such inaction by inquiring into when actual notice was received.
¶20 In all three cases -- Tidemark, Whitehall, and Cedars -- the prevailing party failed to file proof of service in the trial record. In each case, this Court resorted to evidence beyond that record to decide if the appeal was timely. In none of the cases was there any dispute over the fact that prompt notice was given by the prevailing party. But the fact remains that gathering this information required time and effort at the appellate level. In Tidemark, the prevailing party urged this Court to disregard its own proof of service (filed only with the appellate court, after the appeal was lodged), and inquiry into actual notice doomed the appeal. In Whitehall, the prevailing party never filed proof of service in any court, and inquiry into actual notice saved the appeal. In Cedars, inquiry into actual notice would have doomed the appeal, except for the intervention of another statute not relevant here.
¶21 Tidemark's analysis, central to all three cases, deserves re-examination.
The reason for the statute's requirement that a certificate of mailing be filed is to establish when the order was mailed in the event there is a dispute about the date that the appealing party received actual notice of the filing of the order, the appealable event. ... The date of the filing of the certificate of mailing is not the appealable event. ... We have long held that actual notice of an appealable event triggers the running of the appeal time. ... The 1997 amendments to 12 O.S. § 990A
Tidemark, 1998 OK 67
¶22 This analysis is flawed. First, the proof-of-service requirement does not settle disputes over when actual notice was received. What it does, rather, is avoid case-by-case, appellate-level, extra-record inquiry into timeliness of an appeal. It does so by making actual notice irrelevant (except when the appellant prepared the judgment herself, in which case actual notice is inferred). Indeed, there was never any factual dispute in Tidemark, or in Whitehall, or in Cedars, over when actual notice was received. The dispute in those cases was a legal one: whether actual notice mattered.
¶23 Second, Tidemark's observation that proof of service is "not the appealable event" is true, but adds nothing to the analysis. Even Tidemark itself doesn't count appeal time from the date of the appealable event (filing the judgment), but from the date of actual notice of that event. And the fact remains, the statute does not peg appeal time to either of these events.
¶24 Third, by placing actual notice above record notice, Tidemark invites disputes over timely filing in each and every appeal. Nothing in Tidemark's approach bars a prevailing party from challenging the timeliness of an appeal, even after it has duly filed proof of service to cover itself. In fact, that is just what the prevailing party in Tidemark did.
¶25 Finally, Tidemark works against this Court's oft-stated concern over due process for litigants - specifically, fair notice of when one's right to appeal has been put to a stopwatch. Even after Tidemark, we held that failure to provide notice to litigants of judicial events affecting their rights was an impermissible defect in the process. Baltz, 2000 OK 73Tidemark makes proof of service -- even service itself -- complimentary only.
¶26 "Actual notice" that some event has occurred is relevant in some legal contexts. But since it is a fact-specific inquiry, it is not helpful for determining the timeliness of an appeal. That task chiefly depends on routine acts -- signatures, file-stamps, postmarks -- which are easy to identify at the time an appeal is lodged. It is important to note that service, and record proof of service, are related concepts but serve different purposes. The aggrieved party is interested in notice of the judgment, but the victor can serve the loser without anyone else being aware of that fact. Put simply, service of judgments aids litigants; record proof of service aids appellate courts. Section 990A(A) aims to solve both problems -- fair notice for litigants, and efficient administration for courts -- by requiring not just service on the parties, but record proof thereof.
¶27 We have often said we lack jurisdiction to consider untimely appeals. E.g., Rodgers v. Higgins, 1993 OK 45871 P.2d 398Loffland Bros. Equipment v. White, 1984 OK 69689 P.2d 311Tidemark and its progeny not only ignore the plain language of Section 990A(A); they reward non-compliance with the statute. In the process, they saddle this Court with fact-finding, which appellate courts are ill-equipped to handle with efficiency and confidence. at the time it is lodged, by reference to information available in the trial record and on the face of the petition itself.
¶28 While each jurisdiction has unique statutes and rules regarding appeal times, the argument that actual knowledge might serve as a substitute for record notice is an old one, and has largely been rejected.
serve[s] to promote clarity, certainty and ease of determination, so that an appellate court will immediately know whether an appeal was perfected in a timely manner, thus eliminating the need for a case-by-case factual determination.
Another court observed, almost a century ago, that strict adherence to a statute requiring written notice of appealable order "has the merit of doing away with disputes as to whether or not a party had actual notice, and will establish a uniform rule of practice... ."
¶29 When the Legislature provides for the right to appeal, that right should be liberally construed. City of Tulsa v. Board of Trustees of Police Pension and Retirement System, 1963 OK 267387 P.2d 255Nelson v. Nelson, 1998 OK 10954 P.2d 1219
¶30 When applying statutes, our goal is to give effect to legislative intent; if intent is plain from the text, there is nothing for us to do but implement it. Rickard v. Coulimore, 2022 OK 9505 P.3d 920Tidemark, Whitehall, and Cedars are overruled to the extent they are inconsistent with today's pronouncement. Today's decision shall apply prospectively, controlling only those cases filed after the issuance of this opinion.
¶31 We find the instant appeal is timely, and now consider its merits.
II. THE MERITS OF THE APPEAL
A. Standard of review.
¶32 A divorce suit is one of equitable cognizance, in which the trial court has discretionary power to divide the marital estate in a manner that is fair, just, and reasonable. Colclasure v. Colclasure, 2012 OK 97295 P.3d 112343 O.S.2021, § 121Standefer v. Standefer, 2001 OK 3726 P.3d 104
B. Discussion.
¶33 Although Wife sets out four propositions of error, they are closely related and we consider them together for the sake of simplicity.
¶34 Generally, in a property division arising from a divorce, courts exclude from the marital estate any assets considered to be the separate property of one of the parties. Property acquired during the marriage is presumed to be marital property, accumulated by the joint industry of both spouses, and subject to equitable division; this is so regardless of how title to the property might be held. Gray v. Gray, 1996 OK 84Standefer, 2001 OK 37
¶35 People usually enter marriage with some assets of their own. If these assets are kept segregated, they generally remain separate property, which we have described as "property owned by a spouse before the marriage, which retains its separate status during coverture because it is maintained in an uncommingled state as a spouse's individual property." Thielenhaus v. Thielenhaus, 1995 OK 5890 P.2d 92543 O.S.2021, § 205Standefer, 2001 OK 37Umber v. Umber, 1979 OK 24591 P.2d 299See Gray, 1996 OK 84
¶36 Divorcing parties may agree between themselves on how to divide their assets. Public policy favors settlements and compromises over litigation, and that policy applies to dissolutions of marriage. Whitehead v. Whitehead, 1999 OK 91995 P.2d 1098Dickason v. Dickason, 1980 OK 24607 P.2d 674See Limb v. Limb, 1945 OK 96156 P.2d 101343 O.S.2021, § 121Limb, 1945 OK 96
¶37 In summary, parties to a marriage may combine their separate assets or keep them separate. Absent evidence of a contrary intent, the commingling of assets for joint use and enjoyment will generally be seen as a donation to the marital estate. If the parties divorce, they may agree to divide their assets as they wish -- subject to final approval of the court. The trial court has broad discretion to consider the agreement that was made, to consider any evidence bearing on its voluntariness, and to make any adjustments necessary to reach a fair, just, and equitable result. With these principles in mind, we return to the facts of this case.
¶38 Wife maintains that her separate property was not fully taken into consideration in the trial court's property distribution. When the parties married in 1992, they lived in a home in Chicago, Illinois, which Wife had been awarded in a prior divorce, but which was at the time still encumbered by a mortgage. From 1992 until 2009, the couple continued making mortgage payments on that house together. In 2009, the couple relocated to Broken Arrow, Oklahoma. A down payment of $100,000 was made on the new home, which was deeded to both parties as joint tenants. That same year, the outstanding balance on the Chicago mortgage (about $22,500) was paid off. Both of these payments appear to have been made from a savings account that Wife had opened at Citizens' Bank before the marriage, and to which the couple, during their marriage, continued to contribute for many years. Together, the parties paid the mortgage on the Broken Arrow home for about a decade. The couple continued to own the Chicago home until 2015, when it was sold. The proceeds of that sale (about $98,000) were deposited in a Western Sun bank account.
¶39 Thus, when this divorce action was filed, the parties had a joint interest in one home: the Broken Arrow residence. Wife claims the down payment on that home was made with her separate property from the Citizens' Bank account. However, the couple took title to the Broken Arrow home as joint tenants, and jointly made payments on its mortgage for approximately ten years. Although Wife had an interest in the Chicago home before the marriage, and used funds from the Citizens' Bank account to pay off its mortgage in 2009, both parties nevertheless contributed to the mortgage payments on that residence for approximately seventeen years. The couple's equity in their Broken Arrow home was an amalgamation of jointly-made mortgage payments and a down payment made from an account that Wife had opened before marriage. The sale of the Chicago home in 2015 was the liquidation of an asset that also commingled separate and marital property.
¶40 Wife did not deny that she and Husband jointly added value to both the Chicago home and the Broken Arrow home through years of mortgage payments. She maintained, however, that she deserved credit for her pre-marriage interest in the Chicago home, her payoff of its mortgage, and for the down payment on the Broken Arrow home. But at the hearing, Wife failed to present evidence that she intended to keep her interests in these properties separate from the marital estate. What is more, Wife could not provide any way to value her pre-marriage interest in the Citizens' Bank account, which funded the payoff of the Chicago home and the down payment on the Broken Arrow home.
¶41 Again, we consider the posture of this case. This is not an appeal after a trial, where the valuation and character of property might be thoroughly contested. Rather, Husband sought to enforce a settlement that the parties initially agreed upon, but which Wife later repudiated. Wife claims that as the party seeking to enforce the agreement, Husband carried the burden of proof. Husband had the burden of convincing the court that the agreement was valid and fair. This is more accurately called the burden of persuasion, which simply means that if the evidence is "evenly balanced," Husband must lose. See Jackson v. Oklahoma Memorial Hosp., 1995 OK 112909 P.2d 765
¶42 Husband presented the agreement signed by the parties (Wife stipulated to as much) and testified that in his opinion, it was fair. A facially valid agreement carries a presumption that the parties understood what they were doing and reached a mutually acceptable result. Once the court was presented with such an agreement, the burden of production -- the obligation to come forward with evidence to challenge the agreement -- shifted to Wife. See Green v. Green, 1944 OK 289152 P.2d 910
¶43 There is no dispute that the parties -- with advice of counsel -- voluntarily undertook settlement negotiations, and that they reached an agreement on how to determine and divide their property. They did so after several months of discovery, where they had time to gather relevant financial information and develop strategies based on available facts and existing law. Wife initially concurred in the settlement. The freedom to negotiate a property settlement implies the freedom to forgo potential claims that particular assets should be deemed separate property. In seeking to reject the agreement, Wife made no claim that it was the product of fraud, mistake, or coercion. Nor did she claim that her original counsel misadvised her on any point of law. Rather, Wife's position at the hearing seemed to be a simple change of strategy.
¶44 With no evidence to rebut the presumption that the agreement was valid, the trial court undertook its statutory duty to consider whether it was fair, just, and equitable. 43 O.S.2021, § 121Wheeler v. Wheeler, 1934 OK 11332 P.2d 305
¶45 Wife also claims the trial court did not fully consider factors relevant to the basic fairness of the property division, e.g. the parties' ages, employment prospects, etc. These factors are certainly relevant, but again, we consider the posture of this case. Wife initially found the settlement terms acceptable to her. At the hearing, both parties testified briefly about their ages and employment history. But aside from her claims concerning separate property, Wife did not advance any particular reasons for why she deserved to receive more than the settlement provided, or just how much more was appropriate. The trial court could only consider information that the parties provided to it, and we have no reason to believe that it did not fully consider all the evidence that it received. See Standefer, 2001 OK 37
III. CONCLUSION
¶46 To summarize: Wife presented no evidence to rebut the presumption that she voluntarily entered into the settlement agreement. As to her claims of separate property, Wife presented no reasonably specific valuation of those contributions, no reasonable probability that they could ever be valued in the future, and no evidence that she intended to keep these assets separate from the marital estate. Considering all of the evidence presented to it, the trial court awarded Wife approximately 56% of the couple's combined assets. Under these circumstances, we cannot say the trial court abused its discretion. The trial court's decree on dissolution of marriage is therefore AFFIRMED.
CONCUR: KANE, C.J., ROWE, V.C.J., WINCHESTER, EDMONDSON, COMBS, GURICH, AND KUEHN, JJ.
CONCUR IN RESULT: DARBY, J.
CONCUR IN PART/DISSENT IN PART: KAUGER, J. (BY SEPARATE WRITING)
Ensuring that litigants receive prompt notice of judgments has been a persistent problem. Trial judges might rule from the bench, or they might take the matter "under advisement." Judges might draft a judgment themselves. They might have it filed with the court clerk, or wait for one of the parties' attorneys to retrieve it. They might contact the parties before the judgment is reduced to writing and tell them what it will say. Or the judge might assign the task of preparing the judgment to one of the parties (typically the prevailing one). The losing party might approve a draft of the judgment as to form (but objecting to its contents), or might repudiate such a courtesy. The court clerk receiving the judgment might file it, but neglect to send copies to the parties. And so on. These scenarios made it unclear when a litigant should be charged with notice of a decision, which affected their right to file an appeal or any number of post-decisional motions.
To reduce the confusion, our Legislature has attempted over the years to streamline the process. A judgment was once considered appealable on its "effective pronouncement." Grant Square Bank & Trust Co. v. Werner, 1989 OK 126782 P.2d 109filed -- an event more readily verifiable (for appellate courts) than the date of pronouncement. But a distinction between judgments "taken under advisement" and those which are not persisted until 1997. Before then, if the matter was taken under advisement, the petition was due 30 days from the date that a file-stamped copy was mailed to the appealing party, as indicated on the certificate of mailing. As of 1997, the right to appeal a judgment - any judgment falling under section 990A, not just those taken under advisement - can be limited by filing proof of service to other litigants with the court clerk.
¶2 Court rules and Administrative rules are valid expressions of lawmaking powers and have the full force and effect of law.
¶3 The judicial construction becomes an integral part of the statute. Upon completion of the compilation of the statutes and approval by the Court, all the laws contained therein become the laws of the state.
¶4 Obviously §990A needs attention. The three day rule causes more problems than it solves, and a bright line may be helpful. (It would also be helpful if all petitions for relief were uniformly set at 30 days regardless of the forum.) However, for the last 25 years, the bench and bar have relied on the Court's Tidemark, interpretation to include actual notice.
¶5 The statute has been re-codified two or three times. If the Legislature were dissatisfied with the Tidemark interpretation, it has had decades to correct it. Amendment to §990A is for the Legislature, not this Court. Such an abrupt change could cause chaos -- not to mention the obliteration of the sufficiency of actual notice.
C. Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.