Jones v. Jones

548 P.3d 483

2024 OK CIV APP 12

In re the Marriage of: Alberta Rose JONES, Petitioner/Appellant,

v.Donald David JONES, Respondent/Appellee.

Case No. 117,025

THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division No. 4

Court of Civil Appeals of Oklahoma, Division No. 4.

Filed March 15, 2023

Rehearing Denied: July 7, 2023

Mandate Issued: April 11, 2024

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY, OKLAHOMA; HONORABLE GEORGE BUTNER, TRIAL JUDGE

AFFIRMED

Anita F. Sanders, ANITA F. SANDERS LAW FIRM, Oklahoma City, Oklahoma, for Petitioner/Appellant

Shanda L. Adams, JUSTICE LEGAL TEAM, PLLLP, Oklahoma City, Oklahoma, for Respondent/Appellee

OPINION BY JOHN F. FISCHER, JUDGE:

¶1 Alberta Rose Jones appeals various district court rulings related to and including the divorce Decree entered in this marriage dissolution action she filed against Appellee Donald David Jones. The substance of her appeal asserts that the "default decree" is void because she did not receive the required notice of the hearing when the Decree was entered. That contention is not supported by the record. Further, Alberta failed to preserve appellate review for any of the issues argued in her appellate briefing. Nonetheless, we review the Decree for fundamental error. Finding none, we affirm.

BACKGROUND

¶2 Alberta and Donald were married in 1980 in California. In 2011, the couple separated and Alberta moved to Oklahoma while Donald remained in California. In January of 2015, Alberta filed a petition for dissolution of marriage in Lincoln County, Oklahoma, and served Donald in California by certified mail. The district court granted Donald an extension of time to answer until February

24, 2015, based, in part, on Donald’s representation that Alberta had agreed to his request for an extension. Donald timely filed an answer and permissive counterclaim. Alberta filed an answer to the counterclaim and the case proceeded, although slowly and contentiously.

¶3 For example, Donald filed his initial discovery request on February 26, 2015, which Alberta received on March 6, 2015. Alberta’s attorney withdrew from the case and Alberta proceeded pro se. Alberta refused to answer the discovery requests despite being ordered by the court to do so on May 19, 2015, and April 27 and May 17 of 2016. On June 9, 2016, Donald filed a motion for an order sanctioning Alberta for refusing to comply with the district court’s discovery orders. The matter was heard on July 5, 2016.

¶4 However, prior to that hearing, Alberta filed several matters including a statement that she had not received Donald’s June 9, 2016 motion. She also filed a sworn declaration stating that she was unable to attend the July 5, 2016 hearing because she would be on vacation and was not going to change her plans. Nonetheless, Alberta did appear at the hearing according to a court minute filed in the case.¹ However, before Donald’s motion was considered, the original judge assigned to the case heard and granted Alberta’s motion to recuse. As a result, consideration of Donald’s motion for an order sanctioning Alberta for refusing to comply with the district court’s previous discovery orders was delayed. Donald’s motion was finally heard on April 25, 2018.

¶5 In addition, Alberta has caused the prosecution of this case to be delayed by filing numerous motions to disqualify the judges assigned to her case. Alberta’s first motion to recuse the Lincoln County judge originally assigned to this case was denied, but she was not deterred. Over the course of the next year, she filed four separate motions to recuse that judge, including the motion granted at the July 5, 2016 hearing.

¶6 In 2016, the Supreme Court assigned a district court judge sitting in Wewoka to this case. Wewoka is in Seminole County, a county adjoining Lincoln County and approximately a one-hour drive from the Lincoln County courthouse in which Alberta filed this case. Alberta filed successive motions to recuse the new judge appointed to her case, or to transfer the case to a different judge, or to change venue. Those motions were unsuccessful but delayed resolution of the case while the motions were pending.

¶7 Further, Alberta filed several motions and other documents challenging the district court’s personal jurisdiction over Donald and the court’s subject matter jurisdiction over the marital estate in California, despite the fact that she had voluntarily initiated this litigation in Oklahoma, and Donald had appeared without objection to the Oklahoma court’s jurisdiction and had requested affirmative relief. All of Alberta’s challenges to the district court’s jurisdiction were denied. But, Alberta’s jurisdictional challenges were so numerous and meritless that the district court, in an April 25, 2018 sanctions Order, "prohibited and enjoined" her from refiling or reasserting any claims relating to the "Jurisdiction of this Court."

¶8 On August 23, 2017, Donald filed a motion to enter the matter on the trial docket, and a motion to settle an order granting his motion for discovery sanctions. A proposed sanctions order was attached to Donald’s motion. By an order signed and emailed to the parties, including Alberta, on November 13, 2017, but not filed until November 15, 2017, the district court set several matters for hearing, including Donald’s motions. The hearing was set for November 30, 2017, "in the South Courtroom, Seminole County Courthouse, Wewoka, Oklahoma." The district court advised the parties that: "FAILURE TO ATTEND MAY RESULT IN THE DISMISSAL OF THE ACTION OR THE GRANTING OF A DEFAULT JUDGMENT." In addition, the court advised the parties to "be familiar with and comply with the requirements of District Court Rule 5, Rules for District Courts of Oklahoma," which governs pretrial proceedings.

¶9 Alberta and Donald appeared at the November 30 hearing. However, before proceeding to resolve the matters set for hearing, Alberta again sought removal of the district judge. The judge allowed Alberta to file a written request for the judge’s recusal instanter and to present evidence and argument in support of her motion during an in camera hearing. The court denied her motion and advised Alberta she had five days to appeal the denial of her motion for recusal.

¶10 Alberta did so by filing a petition with the Chief Judge of the judicial district. Alberta’s petition was set for hearing on December 21, 2017, in Newkirk, Oklahoma, in the courtroom of the Chief Judge. Alberta filed a request to reschedule the hearing date complaining that she had not received ten days’ advance notice of the hearing and advising the court that she would be on vacation until January 1, 2018. The Chief Judge denied Alberta’s request for the recusal of the district judge assigned to her case on January 31, 2018.

¶11 In an order filed on March 1, 2018, but signed and emailed to the parties, including Alberta, on February 27, 2018, the district court noted that Alberta’s most recent motion for recusal had been denied and that no appeal of that order had been filed. The court then ordered that: "all pending matters in regard to the divorce proceedings in the above-captioned case be … set for hearing and resolution before the undersigned Judge in the South Courtroom, 2nd floor, Seminole County Courthouse, Wewoka, OK on the 23rd day of April, 2018 at 8:30 o’clock a.m." Donald’s August 23, 2017 motion to settle order on discovery sanctions and his motion to enter the case on the trial docket were again set to be resolved at the April hearing. In addition, the parties were ordered to exchange witness and exhibit lists, provide a "signed and sworn affidavit of income and expenses," provide a list of assets and liabilities with values and recommendations regarding how they should be divided for property division, a statement of uncontested facts, and a list of disputed issues with a written recommendation for their resolution. The parties were ordered to comply "within 20 days of this date, February 27, 2018."

¶12 On April 12, 2018, Donald filed and served Defendant’s Motion in Limine. The motion was mailed to Alberta by certified mail on April 11, 2018. In that motion, Donald stated that the documents that the district court ordered on February 27 to be exchanged "within 20 days" were due on March 19, 2018, but that Alberta had failed to provide any of the court-ordered documents. Donald moved "pursuant to 12 O.S. § 3227, and Rule 5(J) of the rules for the District Courts of Oklahoma" for discovery sanctions "or, in the alternative, default judgment against the Plaintiff, pursuant to 12 O.S. § 3237(B)(2)(c)." Alberta did not respond to Donald’s motion.

¶13 However, on April 20, 2018, three days before the scheduled hearing, Alberta filed her "Exhibits Submitted by Plaintiff Alberta Rose Josephine Jones in Support of Her Opposition to these Proceedings and Non Participation." Although Alberta had attended the November 30, 2017 hearing in Wewoka, she stated in her April 20 filing: "Plaintiff Alberta Rose Josephine Jones will not be attending any more hearings in Wewoka, Oklahoma." The exhibits attached to Alberta’s statement of non-participation were not responsive to the district court’s March 1, 2018 order but reasserted her jurisdictional argument. Alberta also attached an order dismissing the lawsuit she had filed in the United States District Court for the Western District of Oklahoma, and in which she had named various defendants including Donald, his counsel and the district judge.

¶14 Alberta’s federal case, CIV-17-1287-HE, was dismissed on February 21, 2018, without leave to amend for Alberta’s failure to assert a colorable federal claim and failure to establish diversity of citizenship. The federal court noted the similarity of Alberta’s invalid "litigation positions" in other federal litigation and her refusal to cooperate in discovery in that case. Alberta was: "advised that further pursuit of cases like this one in...