Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Marriage of Mahoney

Court of Appeals of Oklahoma, Division III

September 8, 2017

IN RE THE MARRIAGE OF MAHONEY JOHN M. MAHONEY, Petitioner, and THE ESTATE OF JOHN M. MAHONEY, Real Party in Interest/Appellee, v.CONNIE A. MAHONEY, Respondent/Appellant.

          Mandate Issued: 02/14/2018


          Kevyn Gray Mattax, Oklahoma City, Oklahoma, for Petitioner/Appellee,

          Kelsey Dulin, DULIN LAW FIRM, Edmond, Oklahoma, for Respondent/Appellant.

          Kenneth L. Buettner, Chief Judge.

         ¶1 Respondent/Appellant Connie A. Mahoney (Wife) appeals from the trial court's order denying her motion to vacate a consent decree of dissolution. Wife sought to vacate the decree because it was signed by Petitioner John Mahoney's (Husband) sister, acting as his attorney in fact under a durable power of attorney, under allegedly fraudulent means. Husband died between the date of the consent decree and Wife's motion to vacate and Petitioner/Appellee The Estate of John Mahoney was substituted as the real party in interest. The trial court's findings that Husband was competent at the time the decree was executed and that the decree was not executed by fraud are supported by the weight of the evidence. The broad power of attorney form in this case gave Husband's attorney in fact power to enter contracts affecting property rights; more importantly, Husband directed his attorney in fact to sign the consent decree for him because his own signature was shaky. A consent decree of dissolution may be executed by an agent where such authority is not excluded by the terms of the power of attorney instrument. The trial court did not abuse its discretion in denying Wife's motion to vacate and we affirm.

         ¶2 The parties were married in 1960 and separated in January 2008. Husband filed his Petition for Dissolution of Marriage in November 2012. The parties entered a Journal Entry and Consent Decree of Dissolution of Marriage which was approved by the trial court and filed August 5, 2013. Wife filed her motion to vacate the consent decree September 3, 2013. Wife asserted that after it was filed, she discovered the decree had been signed by Kathleen Dunn as Husband's attorney in fact under a power of attorney and that Husband had died due to a brain tumor three weeks after the decree was filed. Wife argued the decree was obtained by fraud because Husband's counsel failed to disclose to Wife that Husband had a terminal illness affecting his brain and because Husband had failed to disclose one bank account during discovery. Wife also sought to vacate based on an irregularity in obtaining the judgment and unavoidable casualty or misfortune due to the decree being signed by Dunn rather than by Husband. Estate opposed the motion.

         ¶3 Hearing on Wife's motion to vacate was held in February 2016. The trial court issued its order denying the motion March 24, 2016. The trial court found that Estate met its burden of proving that Husband was competent at the time he expressly directed Dunn to execute the consent decree. In particular, the trial court found Husband first signed a signature page for the decree but due to physical shaking and not due to incapacity, Husband directed Dunn to also sign a signature page, which disclosed her status and which was attached to the filed decree. The trial court noted Husband's signature was shaky and Husband himself signed a beneficiary change on an annuity and his last will and testament after the decree was filed. The court found Husband had no duty to disclose his illness or that he had executed a power of attorney and therefore found no irregularity or fraud in the use of the power of attorney to execute the decree. Lastly, the trial court found that the fact that Dunn was designated as the beneficiary of Husband's estate was not a sufficient irregularity to set aside the decree because the evidence showed Husband desired that his sister, who was his primary caregiver during his last illness, receive his estate. [1]

         ¶4 We review a trial court's order on a motion to vacate for an abuse of discretion. Jones, Givens, Gotcher & Bogan, P.C. v. Berger, 2002 OK 31, ¶5, 46 P.3d 698. "Although a trial court is vested with wide discretion in denying a new trial, its order will be reversed if the trial court is deemed to have erred with respect to a pure, simple and unmixed question of law." Id., citing Bishop's Restaurants, Inc. of Tulsa v. Whomble, 1960 OK 44, 355 P.2d 560, 563, and Nash v. Hiller, 1963 OK 63, 380 P.2d 77, 80. Wife's claims on appeal are that a divorce is personal and may not be entered by an attorney in fact, that Husband lacked capacity to direct Dunn to execute the decree, and that Husband, Dunn, and Husband's counsel fraudulently concealed Husband's illness from Wife in order to obtain the consent decree.

         ¶5 We have reviewed the record and find it supports the trial court's findings of fact. As noted above, the parties separated at the beginning of 2008 and Husband filed his petition in late 2012. In April 2013, Husband discovered he had a brain tumor and he named Dunn as his attorney in fact in a broad durable power of attorney form executed April 29, 2013. Husband lived with Dunn until he entered a nursing home July 13, 2013. [2] Through counsel, the parties exchanged discovery and the case was set for trial September 13, 2013. Also through counsel, the parties exchanged offers and counter-offers to settle during summer 2013 and reached an agreement in late July. Husband's counsel prepared the consent decree and sent it to Wife's counsel. Wife and her counsel signed it and returned it to Husband's counsel. Dunn testified she took the document to Husband at the nursing home where he read it and signed it. Due to concern about his signature being shaky, Husband asked Dunn to sign the instrument on a new signature page. On the line above Husband's name, Dunn signed "John M. Mahoney by Kathleen S. Dunn POA". Husband's counsel took the decree, with attached signatures of Dunn as attorney in fact for Husband, Husband's counsel, Wife, and Wife's counsel, to the assigned judge who approved it for filing. The decree was file stamped August 5, 2013.

         ¶6 Wife and her counsel received the file-stamped copy August 16. Wife's counsel then sent an email to Husband's counsel, expressing surprise that Dunn had signed for Husband and asking for assurance that Husband would not try to use that fact to get out of the contract. In that email, Wife's counsel asserted Wife was not trying to get out of the decree. Husband died August 25, 2013. Only after learning of Husband's death did Wife seek to vacate the consent decree.

         ¶7 We first address Wife's claim that she was fraudulently induced to sign the consent decree. Wife cites testimony that Husband did not want Wife to know he was sick as proof of a conspiracy to trick her into settling. She contends she would not have agreed to settle if she had known Husband was dying and therefore contends Husband's illness was a material fact she had a right to know before agreeing to settle. Wife has not urged that she was induced to enter an inequitable settlement due to the failure to disclose Husband's illness. Wife has presented no authority that a party to a divorce proceeding has a duty to inform the other spouse of illness where the fact of illness is not relevant to the controversy. A spouse's health may be relevant for purposes of showing need for support alimony or determining the best interests for custody determinations, but neither of these questions was presented in this case. Wife has not suggested Husband's health was in controversy. Under the discovery code, to seek a medical examination of a party, the other party must show good cause and that the party's medical condition is "in controversy." 12 O.S.2011 §3235. Nor has Wife asserted she made a discovery request regarding Husband's health to which Husband answered falsely. Wife was represented by counsel and Wife agreed to settle the case rather than proceed to trial. Additionally, Wife has presented no authority that anyone had a duty to tell her, before she agreed to settle, that Husband had given Dunn a power of attorney or that Dunn would sign the consent decree under that power. There is no evidence of fraud in this case.

         ¶8 Wife also argues that Husband was not competent at the time the decree was executed and that it was fraud for Dunn to sign it as a result. Our review of the record shows the witnesses who actually observed Husband testified that he was competent at the time the parties settled. The trial court's finding that Husband was mentally competent at the time he directed Dunn to sign the decree is not against the weight of the evidence.

         ¶9 We next consider whether an attorney in fact, acting pursuant to a power of attorney, may execute ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.