Dispositions Other Than By Published Opinion | May 31, 2023
Oklahoma Court of Civil Appeals
Division I
Division II
120,213 – In re the Marriage of: Tia Shantel Johnson, Petitioner/Appellee, v. Jermaine Lamar Johnson, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Hon. Lynne McGuire, Trial Judge. Jermaine Lamar Johnson (Husband) appeals trial court orders granting the motion for partial summary judgment filed by Tia Shantel Johnson (Wife) and awarding child support. The questions on appeal are whether the trial court (1) erred in granting the motion for partial summary judgment, (2) abused its discretion in refusing to admit evidence, or (3) erred in ordering Husband to pay child support retroactively to the filing of the petition for dissolution of marriage. After review, we see no error by the trial court in granting the motion for partial summary judgment and no abuse of discretion in its refusal to admit and consider certain evidence, but granting retroactive child support was error requiring reversal. We therefore affirm in part and reverse and modify in part the dissolution decree and joint custody plan. AFFIRMED IN PART AND REVERSED AND MODIFIED IN PART. Opinion from Court of Civil Appeals, Division II, by WISEMAN, P.J.; BARNES, V.C.J., and HIXON, J., concur. May 25, 2023
Division III
120,260 – Jessica Diane Smith, Plaintiff/Appellee, v. Harris S. Smith, II, Successor Trustee of the Harris S. Smith Family Trust, Andrew T. Smith and Adam Smith, Defendants/Appellants. Appeal from the District Court of Carter County, Oklahoma. Honorable Thomas K. Baldwin, Trial Judge. This appeal stems from an Order entered by the trial court granting relief in favor of Plaintiff/Appellee, Jessica Diane Smith (“Jessica”), after she filed a Petition asserting that the Successor Trustee, Harris S. Smith, II (“Harris”), of the Harris S. Smith Family Trust (“Trust”), should be prohibited from liquidating or selling assets of the Trust and for various other relief. Jessica alleged that Harris did not provide accountings or keep her informed regarding the financial affairs or assets of the Trust. Approximately two weeks prior to trial, one of the named Defendants, Andrew T. Smith (“Andrew”), passed away. Harris filed a Suggestion of Death and a Motion to Continue so that Andrew’s estate could be substituted as a party to the action. The trial court denied the Motion for Continuance and the trial was held as previously scheduled. We hold that, under the narrow facts of this case, it is appropriate to rely on the doctrine of substantial compliance under 12 O.S. § 2025, and conclude that the trial court did not commit error in proceeding with the trial in the face of the Suggestion of Death and to deny the Motion to Continue. Following the non-jury trial, the trial court found that Harris breached his fiduciary duties to Jessica by delaying an accounting, by delaying distribution of Trust assets to her, by inappropriately paying health insurance and a salary out of Trust funds, and by selling or attempting to sell Trust property at below market value. The trial court held that Harris was responsible for all financial loss occasioned by his breaches of fiduciary duty. Defendants/Appellants brought this appeal. We have reviewed the record and find that the Orders issued by the trial court are not clearly against the weight of the evidence and are not contrary to law. Accordingly, we AFFIRM the Order of the trial court. Opinion by PRINCE, P.J.; MITCHELL, C.J., and BELL, J., concur. May 26, 2023
120,392 – Lease Holders Acquisitions, Inc., Appellant, v. Corporation Commission of Oklahoma, Appellee. Appeal from the corporation commission of Oklahoma. Appellant, Lease Holders Acquisitions, Inc., appeals from an order of the Oklahoma Corporation Commission (OCC) concerning twelve (12) oil wells Appellant operates. As a preliminary matter, we address and reject the OCC’s motion to dismiss this appeal as untimely. We hold the 30-day appeal time of Supreme Court Rule 1.85 did not begin to run when the OCC issued its final order because the OCC failed to serve Appellant’s record counsel with a copy of the final order as mandated by OAC 165:5-15-1(b). We also hold Appellant was denied fundamental due process in the proceedings below because the final hearing was scheduled and conducted without notice to Appellant. Appellant’s motion for sanctions is denied. Appellant has cited no authority for the proposition that the sanctions provisions of 12 O.S. 2021 §2011 are applicable to the OCC proceedings on review herein. REVERSED AND REMANDED. Opinion by BELL, J.; MITCHELL, C.J., and PRINCE, P.J., concur. May 26, 2023
120,696 – In the Matter of Z.S., Alleged Deprived Child: State of Oklahoma, Petitioner/Appellee, v. Marquise Savage, Respondent/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Julie Doss, Trial Judge. Respondent/Appellant Marquise Savage (Father) challenges the termination of his parental rights to his daughter, Z.S. The trial court found Father, who was incarcerated, waived his right to a jury trial by refusing to get out of bed when prompted by correctional facility workers. The result was that he was unable to be timely transported to the courthouse for trial. The court held a non-jury trial and terminated Father’s rights on multiple grounds. We find the court acted within its discretion under 10A O.S. 2021 §1-4-502(B) when it found Father’s failure to appear without good cause was a waiver of his right to be tried by a jury. Further, three of the grounds for termination are supported by sufficient admissible evidence – namely, that Father failed to correct the condition of proper care and parental guardianship; that, due to his incarceration and consideration of statutory factors, the continuation of Father’s parental rights would result in harm to Z.S.; and that Z.S. had been in foster care for the statutory length of time for her age and could not be safely returned to Father. However, Petitioner/Appellee the State of Oklahoma failed to properly plead other conditions and grounds for termination. Accordingly, we AFFIRM IN PART, REVERSE IN PART, AND REMAND with instructions for revision of the court’s final order Opinion by MITCHELL, C.J.; PRINCE, P.J., and BELL, J., concur. May 26, 2023
Division IV