# Holleyman v. Holleyman

> Supreme Court of Oklahoma · October 14, 2003 · 78 P.3d 921

URL: https://www.frixlaw.com/law-library/cases/9784726

## Case

- **Full name:** Cynthia Jo HOLLEYMAN, Now Ward, Plaintiff/ Appellant, v. Randall Dexter HOLLEYMAN, Defendant/Appellee
- **Court:** Supreme Court of Oklahoma
- **Decided:** October 14, 2003
- **Citations:** 78 P.3d 921; 2003 OK 48; 2003 WL 21075033
- **Precedential status:** Published
- **Opinion:** On rehearing by Opala
- **Judges:** Watt, Opala, Hodges, Hargrave, Kauger, Summers, Lavender, Boudreau, Winchester
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9784726

## How later opinions describe it (automated extraction)

- explaining that Rule 1.14(a) regulates the enforcement procedure of 12 O.S. § 978 and these provisions mandate the prevailing party’s recovery of taxable costs including court reporter expenses at the conclusion of appellate litigation
- stating contract is not invalid simply because it does not specify all details regarding the subject matter, so long as parties’ intent can be ascertained with reasonable degree of certainty

## Opinion text

OPALA, V.CJ.
{1 This matrimonial dispute comes now for our consideration of appellant's motion to tax costs. See Supreme Court Rule 1.14a 1 and the provisions of 12 0.98.2001 § 978 2 Appellant's motion is granted and the three cost items sought to be recovered (totaling $333.75) stand allowed.
I
THE PROVISIONS OF § 978 COMMAND THAT A PREVAILING APPELLANTS COSTS ON REVERSAL OF A JUDGMENT BE TAXED DE CUR-SU 3
12 The terms of § 978, whose *941 enforcement procedure is regulated by Rule 1.142, mandate that at the conclusion of appellate litigation the prevailing party be entitled to recover taxable costs de cursu. 4 The court clerk may tax statutory court costs, such as those described as filing fees, to the losing party sans judicial intervention. 5 If the prevailing party has submitted a "verified statement of taxable cost items" before issuance of the mandate in accordance with Rule 1.142, the victorious litigant may also be awarded the court reporter's expenses. 6
13 As prevailing party on reversal appellant is entitled to two filing fees (for her petition in error and that for certiorari), totaling $300.00. These cost items are deposits taxable de cursu. They should be granted to appellant (as prevailing party on reversal of the trial court's dismissal order) in accordance with the terms of § 978. Appellant also is entitled to have the court reporter's expense ($83.75) taxed as costs. Before the issuance of mandate, she has submitted, as required by Rule 1.142, proof of payment for the court reporter's services.
II
THE TERMS OF § 978, WHICH APPLY TO ALL APPEALS, ARE NOT ALTERED BY THE MATRIMONIAL CHARACTER OF THE CASE
14 The provisions of § 978 and of Rule 1.14a are as applicable to appeals in matrimonial disputes as they are to appeals in other classes of litigation. 7 Though Gil crease v. Gilcrease, 8 a 1986 case, declares that the Supreme Court is vested with "absolute discretion" to tax costs on appeal of a divorcee proceeding, its text is not a correct exposition of present-day law governing costs on appeal of a matrimonial dispute. 9 The language in @ilerease which adopts this view is pure ipse dixit The opinion cites no authority upon which the rule was rested. 10 Moreover, the view expressed there is an aberration upon the Oklahoma-law landscape. Its pronouncement-that taxing appellate costs in divorcee cases is purely discretionary-has not been followed in any other Oklahoma published opinion. In short, the Gilerease norm no longer carries the force of law. Because the case has never been cited in any Oklahoma opinion nor followed in actual day-to-day Supreme Court practice, it fell into disuse and lost its efficacy by the doctrine of desuetude. 11 It is hereby overruled.
*942 HI
THE PROVISIONS OF $ 978 ARE NOT IN PARI MATERIA 12 WITH THOSE OF 43 0.8.2001 § 110D 13
15 The terms of § 978 and those of § 110D do not regulate the same subject matter and should not be construed together. The provisions of § 978 address solely costs on appeal while those of § 110D primarily authorize allowance of expenses in trial-court litigation. A party who seeks to tax appellate costs under the authority of § 978 must initiate its pursuit in the appellate court, 14 while a litigant in quest of a § 110D matrimonial allowance must initially press for that relief in the trial court. 15 In short, § 110D allowances are generally not granted but only reviewed by the appellate tribunal. Moreover, the terms of § 978 govern taxable appellate "eosts" exelusively, 16 whereas those of § 110D regulate allowance of "expenses" incurred in enforcing or modifying a divoree-court order. 17 Costs are not expenses. 18 The former are creatures of statutes 19 and are taxed de cursu by the court clerk 20 " based upon specific tariffs enacted by the legislature. Expenses, on the other hand, require judicial determination and may be subject to equitable apportionment. 21 Costs de cursu, as distinguished from expenses, are never regulated by equitable principles. They are purely statutory. 22 The terms "costs" and "expenses" are neither interchangeable nor synonymous. In appeals from matrimonial disputes, § 110D (which addresses only expenses) will not control over § 978 (which governs costs on appeal).
16 Though Larman v. Larman 23 and Stepp v. Stepp 24 left each party in a divorcee proceeding with the burden of paying its own attorney's fee and litigation-related expenses, these cases are not germane to today's analysis. Neither Larman nor Stepp addresses taxable appellate costs (which are at issue here). Bingham v. Bingham 25 also is inap-posite to the issue before us. Though Bing-ham divides the appellate costs equally between the parties in a matrimonial dispute, it does not state any grounds or cite any authority (not even § 110D) for this conclusion. 26 Bingham does not refer to taxation of appellate costs upon reversal of a judgment. It deals only with allocation of these costs upon affirmance of a judgment. 27 Finally, Bingham lacks precedential status.
*943 IV
WHEN TAXING COURT COSTS COURTS MUST ADHERE STRICTLY TO LEGISLATIVE ENACTMENTS
T7 Combining an appeal-related attorney's fee with appellate costs for treatment as a single category of burdens to be imposed in the aftermath of appellate litigation strips the Legislature of its control over court costs. Early jurisprudence carefully avoids this conflict between legislative and judicial authority by ceding to the legislature the sole responsibility for controlling the taxation regime of court costs. When taxing court costs courts must adhere strictly to legislative enactments. 28
18 It is this court's duty to obey the legislative cost-allocation scheme. 29 Section 978 very plainly prescribes that appellate costs be taxed in favor of the prevailing party. It allows no exceptions for any class of litigation and leaves no room for judicial tinkering.
y
TODAY'S PRONOUNCEMENT IS RETROACTIVE AND APPLIES TO THE PRESENT CASE
T9 The court need not, as the dissent counsels, apply today's ruling prospectively. Its past practice of taxing appellate costs in matrimonial disputes in strict conformity to the terms of § 978 has been followed uninterruptedly beyond the enactment of § 110D." 30 Gilerease has never been adopted as a rule of practice. Because the norm we formally abolish today has long been in disuse, 31 we will not speculate that anyone would have harbored an expectation of reaping its benefits. Today's pronouncement, a faithful exposition of the existing law on taxation of appellate costs in matrimonial disputes, does not alter the course of present-day law but merely excises from its body an aberrational growth of antiquarian jurisprudence long in desuetude.
VI
SUMMARY
T10 In obedience to the provisions of § 978, which clearly mandate that appellate costs be tazed de cursu in favor of the prevailing party on reversal of a judgment, and to Rule 1.142, which governs in-court procedure for the enforcement of that statute, the appellant's motion to tax appellate costs in her favor is granted. Any other ruling would be an open invitation to judicial dispensation of favors, a practice which has no place in the legislative regime of court-costs regulation. The costs taxed today shall be enforced by the trial court-after receiving this court's mandate-and their execution shall be dealt with in the same manner as if each item had been taxed below.
11 HODGES, LAVENDER, HARGRAVE, SUMMERS and BOUDREAU, JJ., concur.
112 WATT, C.J., and KAUGER and WINCHESTER, JJ., dissent.
KAUGER, J., with whom WATT, C.J. and WINCHESTER, J. join, dissenting to the supplemental opinion on rehearing:
I 1 The majority determines that appellate costs in matrimonial matters are automatically taxable against the prevailing party. To reach this result, the majority: 1) ignores principles of statutory construction insofar as 12 0.8.2001 § 978 1 and 48 0.98.2001 § 110 2 *944 are concerned; 2) overrules precedent specifically holding that this Court has the authority to divide appellate costs equitably; and 8) disregards the historical fact that matrimonial matters arise from chancery and are equitable in nature. Finally, an equitable division of costs would require nothing more than is already being done when trial courts determine the equitable division of attorney fees and expenses.
I.
T2 TITLE 43 0.8.2001 $ 110 IS LATER IN TIME THAN 12 0.8.2001 § 978 AND IS SPECIFICALLY APPLICABLE TO MATRIMONIAL PROCEEDINGS.
[ 3 Where two or more enactments relate to the same subject matter, this Court's primary objective is to determine the latest expression of the legislative will 3 Under this rule of statutory construction, the most recent enactment will ordinarily prevail when there is an irreconcilable conflict between two statutes. When a special statute clearly includes the matter in controversy, the special statute controls over a statute of general applicability. 4 Finally, our goal when considering two apparently conflicting legislative enactments dealing with the same subject matter is to consider them together as a harmonious whole and to give effect to each provision. 5
1 4 The Legislature first enacted the provision for the equitable division of expenses in divorce-related proceedings, 48 0.98.2001 § 110, in 1965. However, the language of 12 ©.S.2001 $ 978, allowing costs on appeal, has been a part of Oklahoma law since 1910. Section 110 deals specifically with matrimonial matters while § 978 addresses costs generally. While there is an apparent conflict between the provisions as it relates to costs, this conflict can be avoided by simply abiding by the established rules of statutory construction-giving effect to the most recent expression of the legislative will, and allowing the specific statute to control over the more general.
IL
T5 BINDING PRECEDENT SUPPORTS THE EQUITABLE DIVISION OF COSTS.
I 6 In 1936, almost thirty years before the Legislature allowed the equitable division of costs in a divorce proceeding, this Court held in syllabus three of Hilcrease v. Gilcrease, 1936 OK 50 , T 0, 54 P.2d 1056 :
"Notwithstanding the affirmance of the judgment of the trial court, this court may, in its discretion, tax the costs of appeal in a divorce proceeding against the prevailing party."
In decrying the efficacy of the GHilcrease opinion, the majority ignores well-settled law on another issue-a syllabus, authored by this Court, embodies the law. 6 The Court's language is not ipse dixit-the bare assertion of an individual. 7 Rather, it is the statement of this Court and is more akin to being carved in stone. We regularly rely upon *945 syllabi as what they are-Oklahoma law as expressed by this Court. 8
T7 The majority can only reach the result here by overruling precedent. If Gilcrease is to be overruled, the change in the law should be given prospective application. When a statute or rule of law appears obscure in its impact on the case at bar, our pronouncements are given prospective effect to protect those who would otherwise suffer. 9
18 Research does not reveal any cause subsequent to Gilerease in which this Court has equitably divided costs. Nevertheless, the Court of Civil Appeals evidently did not consider the practice so "foreign" to Oklahoma practice. In Bingham v. Bingham, 1981 OK CIV APP 26 , 629 P.2d 1297 , the Court of Civil Appeals taxed the costs of the appeal equally between the parties." 10
TH.
T9 MATRIMONIAL SUITS ARE EQUITABLE IN NATURE.
110 The majority does not dispute that matrimonial suits are equitable in nature. 11 Nevertheless, by questionable statutory construction and only by overruling controlling precedent, it requires that, in the matter of taxing appellate costs, equity be taken out of the equation. The position is unsupported either by statute or by controlling precedent.
IV.
11 NO ADDITIONAL BURDEN IS PRESENTED IF COSTS ON APPEAL ARE EQUITABLY DIVIDED.
112 Everyone agrees that the award of attorney fees and expenses never depends upon prevailing party status in matrimonial matters. 12 Where no compelling or overriding equitable considerations exist, husband and wives are each required to bear their own counsel fee obligations and litigation related expenses. 13 Where there is an equitable reason for a different division, the court may consider the financial means of the parties and whether frivolous claims were pursued. 14
113 Attorney fees and costs go together like bread and butter or mashed potatoes and gravy. Once you have to consider the equities for the award of attorney fees and expenses as is mandated by 48 0.8.2001 § 110, 15 the trial court has made the precise determination required for the award of costs. Presumably, the equities would support the same award for costs as for counsel fees. Therefore, the equitable division of costs requires no mental exercise that is not already being done when attorney fees and costs are awarded.
. The terms of Rule 1.14a, 12 0.$.2001, App. 1, in pertinent part, provide:
''The Clerk shall not tax as costs any expense unless the person claiming the same, prior to issuance of a mandate in the cause, shall file with the Clerk a verified statement of taxable cost items showing that person has paid the same."
. The provisions of 12 0.$.2001 § 978 state:
''When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties." (emphasis supplied)
. Simply rendered, de cursu-which translates as "of course""-means in the context of taxing costs *941 that after judgment or appellate decision, ordinary cost items are generally taxed summarily by the ministerial act of a clerk, without any antecedent judicial action or a party's request. Chamberlin v. Chamberlin, 1986 OK 30 , 111 n. 25, 720 P.2d 721 , 726 n. 25. We regulate taxation of these de cursu cost items by procedure prescribed by Rule 1.14a.
. See the provisions of § 978, supra note 2; Williams Natural Gas Company v. Perkins, 1997 OK 72, 1126 , 952 P.2d 483, 491 .
. Perkins, supra note 4, 126 , at 491; Chamberlin, supra note 3 , 111 n. 25, at 726 n. 25.
. Chamberlin, supra note 3 , T11, at 726; see generally, Owens v. Clark, 1936 OK 558 , 61 P.2d 201 , 177 Okla. 519 (holding that a party who won reversal on appeal was entitled to costs on appeal sought in the manner provided by Supreme Court Rule No. 22 [present-day Rule 1.14]).
. Chamberlin, supra note 3, 11 , at 726 (applying § 978 to a party's request for appellate costs in a matrimonial dispute); Jackson v. Jackson, 2002 OK 25, 122 , 45 P.3d 418, 429 (declining to grant a party in a divorce proceeding its costs on appeal because it was not the prevailing party on reversal of a judgment, a ruling consistent with the terms of § 978).
. 1936 OK 50 , 176 Okla. 237 , 54 P.2d 1056 , sylb. 3.
. Chamberlin, supra note 3 , N11, at 726; Jackson, supra note 7 , I 22, at 429.
. See Gilcrease, supra note 8 , at sylb. 3.
. See Poe v. Ullman, 367 U.S. 497, 511-12 , 81 S.Ct. 1752, 1760 , 6 LEd.2d 989 (1961). "[A) legal norm may lose its validity by never being applied or obeyed-by so-called desuetude. Desuetude may be described as negative custom, and its essential function is to abolish the validity of an existing custom." Hans Kelsen, Pure TeEo-ry or Law, 213 (Max Knight Trans.1967).
. Statutes in pari materia are those that relate to the same person or thing or having a common purpose. Brack's Law Dictionary 711 (5th ed.)
. The provisions of 43 0.$.2001 § 110D (now § 110E) state:
''The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."
. See the terms of § 978, supra note 2.
. See the provisions of § 110D, supra note 13.
. See the terms of § 978, supra note 2.
. See the provisions of § 110D, supra note 13.
. See Fleet v. Sanguine, Ltd., 1993 OK 76 , 120, 854 P.2d 892 (differentiating between ordinary court costs that may be taxed de cursu and equitable litigation expenses); for an explanation of equitable litigation expenses see generally, Rand v. Nash, 1935 OK 1086 , 51 P.2d 296 , 174 Okla. 525 . The terminology used for granting costs and expenses differs widely. Statutory costs are "taxed" by the court while equitable expenses are "allowed" by a judge's ruling.
. Howe v. Fed. Surety Co., 1932 OK 730, 127 , 17 P.2d 404, 407 , 161 Okla. 144 ; see also Owens, supra note 6, 120 , at 203.
. Chamberlin, supra note 3 , 1 11 n. 25, at 726 n. 25.
. Fleet, supra note 18, 120 , at 902; see also, Rand, supra note 18 .
. See Howe, supra note 19, 127 , at 407, Owens, supra note 6 , 1 20, at 203.
. 1999 OK 83 , 991 P.2d 536 .
. 1998 OK 18 , 955 P.2d 722 .
. 1981 OK CIV APP 26 , 119, 629 P.2d 1297, 1301 .
. Id.
. Id.
. Howe, supra note 19 , at % 0 syl. 1, at 404.
. Howe, supra note 19 , at 1 0 syl. 1, at 404.
. Chamberlin, supra note 3, 111 , at 726; Jackson, supra note 7 , 1 22, at 429.
. See Part II of this opinion.
. Title 12 0.$.2001 § 978 provides:
"'When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings, or case-made, filed with the petition in error; and when reversed in part and affirmed in part, costs shall be equally divided between the parties."
. Title 43 0.$.2001 § 110 provides in pertinent part:
"... C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of *944 the other as may be just and proper under the circumstances.
D. The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys."
. Public Serv. Co. of Oklahoma v. Northeastern Oklahoma Elec. Coop., Inc., 2002 OK 29, 114 , 49 P.3d 80 ; Grand River Dam Auth. v. State, 1982 OK 60, 124 , 645 P.2d 1011 .
. Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge No. 188 v. Board of County Comm'rs of Tulsa County, 1998 OK 44 , 113, 959 P.2d 979 ; Carter v. City of Oklahoma City, 1993 OK 134, 111 , 862 P.2d 77 ; State ex rel. Trimble v. City of Moore, 1991 OK. 97, 1 30, 818 P.2d 889 .
. McNeill v. City of Tulsa, 1998 OK 2, 19 , 953 P.2d 329 ; Abbott v. Board of Trustees of Oscar Rose, Etc., 1978 OK 129, 17 , 586 P.2d 1098 .
. Box v. State Election Bd. of Oklahoma, 1974 OK 104 , 526 P.2d 936 ; Turner v. Rector, 1975 OK 172 , 544 P.2d 507 ; Perforators v. Hilligoss, 1964 OK 244 , €38, 397 P.2d 113 ; Eckels v. Traverse, 1961 OK 139, 12 , 362 P.2d 683 . See also, Short v. Jones, 1980 OK 87, 13 , 613 P.2d 452 .
. Black's Law Dictionary, 4th Ed. (1968).
. Lawton v. International Union of Police Ass'n, 2002 OK 1, 19 , 41 P.3d 371 ; Chickasaw Telephone Co. v. Drabek, 1996 OK 76, 17 , 921 P.2d 333 ; Goldman v. Goldman, 1994 OK 111, 12 , 883 P.2d 164 .
. When called upon to settle the meaning of not-so-readily intelligible or not-so-clearly settled legal norms that are a veritable trap for the unwary, the court will give its pronouncement purely prospective effect in order to save the parties from the unforeseen impact of an obscurely worded regime of rules. See, McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK. 30, 1 1, 979 P.2d 252 ; Bushert v. Hughes, 1996 OK 21, 12 , 912 P.2d 334 ; Manning v. State ex rel. Dept. of Public Safety, 1994 OK 62 , 11, 876 P.2d 667 ; Hale v. Board of Cty. Comm'rs of Seminole County, 1979 OK 158, 14 , 603 P.2d 761 ; Poafpybitty v. Skelly Oil Co., 1964 OK 162, 119 , 394 P.2d 515 .
. Opinions released by the Court of Civil Appeals are persuasive only. Rule 1.200(c)(2), Rules of the Supreme Court, 12 0.$.2001 Ch. 15, App. 1.
. Moyers v. Moyers, 1962 OK 146, 10 , 372 P.2d 844 ; Bouma v. Bouma, 1968 OK 35, 10 , 439 P.2d 198 .
. Kerby v. Kerby, 2002 OK 91, 113 , 60 P.3d 1038 ; Thielenhaus v. Thielenhaus, 1995 OK 5 , 119, 890 P.2d 925 ; Harmon v. Harmon, 1983 OK 89, 119 , 770 P.2d 1 .
. Daniel v. Daniel, 2001 OK 117, § 24 , 42 P.3d 863 ; Larman v. Larman, 1999 OK 83, 118 , 991 P.2d 536 .
. Kerby v. Kerby, see note 12, supra; Casey v. Casey, 2002 OK 70, 126 , 58 P.3d 763 ; Abbott v. Abbott, 2001 OK 31 , 11 12, 25 P.3d 291 .
. Title 43 0.$.2001 § 110, see note 2, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784726. Public record. Not legal advice.