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In re Marriage of Dalton

Court of Appeals of Oklahoma, Division I

February 15, 2019

IN RE MARRIAGE OF DALTON:

          Mandate Issued: 04/17/2019

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE OWEN T. EVANS, JUDGE

          Brad K. Cunningham, Conner & Winters, L.L.P., Tulsa, Oklahoma, for Appellant,

          Mark Antinoro, Antinoro Law Firm, P.L.C., Pryor, Oklahoma, for Appellee.

          LARRY JOPLIN, PRESIDING JUDGE

         ¶1 Petitioner/Appellant Ashley Hughes Dalton (Wife) seeks review of the trial court's order directing payment of support alimony in installments by Respondent/Appellee Bryan Lee Dalton (Husband) pursuant to the parties' consent divorce decree. In this appeal, Wife complains the trial court impermissibly modified accrued payments of support alimony and, in so doing, violated her right to remarry by extending Husband's spousal support obligation an additional six and one-half years.

         ¶2 The parties married in 1996. Wife filed a Petition for Dissolution of Marriage in March 2011. The parties settled all issues and divorced by consent decree May 22, 2012. According to the consent decree, Husband agreed to pay Wife support alimony in the total sum of $225,000.00. The consent decree provided for Husband's payment of support alimony to Wife in installments according to the following schedule: $4,500.00 per month for twelve months, then $4,250.00 per month for the next twelve months, then $4,000.00 per month for twenty-four months. Apparently, however, neither Husband nor Wife noticed that the installment schedule provided for the payment of only $201,000.00 total, not the $225,000.00 to which the parties agreed.

         ¶3 On August 14, 2015, Husband filed a motion to terminate his support alimony obligation, there remaining some eight months of installment payments due. Husband alleged a change of circumstances in his ability to pay support, and Husband ceased making installment payments pursuant to the consent decree. In January 2016, Wife cited Husband for contempt on account of his failure to pay the installments of support according to the consent decree. After a pre-trial conference in August 2016, the trial court scheduled trial for January 25, 2017.

         ¶4 Prior to trial, in September 2016, Wife filed a motion for summary judgment, arguing that all payments of support due under the consent decree had accrued and were not subject to termination or modification. Husband responded, and argued his support obligation was subject to termination on the alleged change of conditions. In October 2016, the trial court denied Wife's motion for summary judgment.

         ¶5 Wife filed a second motion for summary judgment on December 8, 2016, again arguing the trial court could not terminate or modify the accrued and unpaid support alimony due under the parties' consent decree. Prior to trial on the date of hearing on the merits, the trial court denied Wife's second motion for summary judgment.

         ¶6 At trial, the evidence demonstrated that, at all times after he stopped paying, Husband possessed sufficient funds to make his required payments of support according to the consent decree. At the time of trial, Husband owed some $30,000.00 in past due installments of support alimony, and the $24,000.00 difference between the agreed-to support alimony of $225,000.00 and the $201,000.00 total of installments.

         ¶7 Noting the disparity between Husband's agreement to pay $225,000.00 in support alimony, and the installment schedule providing for Husband's payment of only $201,000.00, the trial court directed Husband to pay the total of $54,000.00 in support alimony due under the consent decree ($30,000.00 in past due installments and the $24,000.00 difference between the total support obligation of $225,000.00 and the total scheduled installments), in installments according to a schedule beginning in April 2017, and extending over the next 78 months.

         ¶8 Wife appeals. Wife again asserts the trial court lacked the power to modify or terminate payments of Husband's support obligation which had already accrued at the time of trial.

         ¶9 On this issue, and both at the time of filing of Husband's motion to terminate and at the time of trial, ...


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