author: LAVENDER, J. OPALA, V.C.J.,

text:
    2004 OK 45
    Charles H. HOUGH, Plaintiff/Appellant, v. Ashley H. HOUGH, Defendant/Appellee.
    No. 96,862.
    Supreme Court of Oklahoma.
    June 8, 2004.

      B. David Sisson of Norman, OK, for Plaintiff/ Appellant.
    George H. Brown and Lee F. Peoples of Klingenberg & Associates, P.C., of Oklahoma City, OK, for Special Master/Appellee.
   LAVENDER, J.

T1 The issue in the present cause is whether the trial court abused its discretion in determining that its order requiring Husband to pay the fees and costs of the special master and the order awarding a judicial lien to special master to secure such payment, were intended to provide support for the wife and thus, non-dischargeable in bankruptcy. We hold that the trial court did not abuse its discretion in making such determinations in this case and the COCA erred in vacating the portion of the trial court's order denominating the special master's fees as support for the wife and the portion of the order providing the judicial lien is non-dischargeable.

F

FACTS AND PROCEDURAL HISTORY

1 2 Husband filed for divorce from Wife on February 12, 1997. This case involves a complicated marital estate, which included the parties' co-ownership of two businesses (A-C Air and A-C Rentals, Inc.) and 44 rental properties, but Husband maintained exclusive control over the businesses, properties and income therefrom. Wife was primarily a homemaker and mother of two daughters during the 16-year marriage, while Husband operated the businesses.

13 Evidence reflects that throughout the course of this litigation, Husband was generally uncooperative in discovery and in compliance with the trial court's orders" he intentionally misused and/or dissipated joint business funds , and that he provided incomplete, false and/or misleading information to the court concerning his true income and/or the value of the two businesses in an apparent attempt to decrease his support obligation for his wife and children.

" 4 Given Husband's misconduct, Wife filed a motion to appoint a special master "to oversee all matters relating to the marital estate of the parties ... to determine the value of the marital estate, to conduct discovery regarding the estate, to control the Husband's ability to further dissipate the estate, to determine the Husband's prior dissipation of the marital assets and all other such matters regarding the estate." Wife's motion specifically requested the need for a special master, who would be both an attorney and certified public accountant, given the "diverse nature of the marital estate and noted such an appointment would spare the parties "considerable time and expense of hiring two experts for the same purpose."} Wife proposed the appointment of attorney/C.P.A. Ken Klingenberg to serve as special master, with such fees and costs of the special master to be paid by Husband. Husband objected to the appointment of a special master "as being outside the scope of any Statutory authority and there being no case law for same."

T5 The trial court ultimately entered the following Order: |

[Alppointment of a special master will be of benefit to the Court in matters relating to discovery, valuation and preservation of the marital estate ... [and such special master] shall have control of all matters relating to discovery, valuation and preservation of the marital estate (including the two businesses); shall control Plaintiffs ability to expend the marital estate and to determine the Plaintiff's prior expenditures and/or depletion of the marital assets; and shall control all other matters regarding the marital estate. Said fees and costs shall be paid by the [Husband] from the marital estate."

Husband thereafter filed his Motion to Discharge Special Master on March 12, 1999, which the trial court subsequently denied. Husband continued his quest for discharge of the special master with the filing of his Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Prohibition with this Court, which was unanimously denied on July 12, 1999.

[6 The parties' divorce proceedings ended in settlement on September 8, 2000, with the issue of attorney fees and costs expressly reserved in the Consent Decree of Divorce. Special master thereafter filed his Application for Attorneys Fees on September 15, 2000, seeking fees and costs in the amount of $43,404.98. Husband reiterated his objections to special master's Application for payment of fees and costs, arguing that "the initial referral to a special master was ultra vires in that there was no good cause for the appointment," the trial court's order granting the special master authority to conduct discovery was improper, vague and overly broad, and the fee was excessive. During the pendency of the trial court's consideration of the reserved issues of fees and costs including those of the special master, Husband filed his Chapter 13 Bankruptcy Petition in the U.S. Bankruptey Court in March, 2001. Special master filed his Amended Application for Payment of Attorney's Fees with the trial court on August 27, 2001, seeking additional fees since the filing of the original Application for a total fees and costs of the special master of $48,703.40.

T7 On September 4, 2001, the trial court granted special master's Application for Payment of Attorney's Fees and approved total payment of fees and costs in the amount of $48,703.40, and further granted special master a judicial lien in that amount over all property awarded to Husband from the marital estate, and determined such "judicial lien shall not be discharged by [Husband] in bankruptcy." Additionally, the trial court determined as follows:

[the initial order requiring the [Husband] to pay the fees and costs of the Special Master from the marital estate and the order awarding a judicial lien to the Special Master, were intended to provide support to the [Wife] ... by allowing her to use the money awarded to her for support instead of using the money for payment of the attorney's fees and costs of the Special Master.

Finally, the trial court concluded "[that substantially all efforts expended by the Special Master in ensuring compliance with discovery order, valuation and preservation of the marital estate, were necessitated by the [Husband's] hindrance, delay and general 'uncooperativeness' in this case; and that such an award as stated above is more than reasonable, considering the [Husband's] actions taken in this case."

T8 Husband appealed, arguing the trial court erred in thé following respécts: (a.) the trial court improperly delegated judicial authority to the special master; (b.) the trial court's order was vague and overbroad in its appointment of special master to conduct "blanket discovery" in a case that does not present complex issues of accounting or valuation; (c.) the trial court erred in awarding special master fees in this case because there is no statutory basis for such award; (d.) the order surpasses the relief prayed for by improperly granting a judicial lien against Husband's property and finding that fees were intended for support of Wife and determining that the fees are not dischargeable in bank-ruptey. COCA affirmed the order awarding special master fees and costs in the amount of $48,703.40, but vacated the portion of the order determining special master's fees as support for the Wife and further vacated the trial court's determination that the judicial lien was non-dischargeable in bankruptcy. Special master filed his Petition for Certiora-ri.

H

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN CHARACTERIZING SPECIAL MASTER'S FEE AWARD IN THE NATURE OF SPOUSAL SUPPORT AND DETER MINING THAT JUDICIAL LIEN GRANTED TO SECURE HUSBAND'S PAYMENT OF SUCH FEE NON-DISCHARGEABLE IN BANKRUPTCY

19 As a starting point, we note that an action for divorce, alimony and division of property such as this one is one of equitable cognizance and in reviewing a case of equitable cognizance, the judgment of the trial court will not be disturbed unless the trial court abused its discretion or unless the court's finding was clearly against the weight of the evidence. Merritt v. Merritt, 2003 OK 68, ¶ 7, 73 P.3d 878, 882, cert. denied, - U.S. -, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003); Creech v. Creech, 1956 OK 10, 292 P.2d 376, 378; Tschauner v. Tschauner, 1952 OK 230, 245 P.2d 448. In this case, the COCA concluded that the trial court abused its discretion in its determination that its Order requiring Husband's payment of special master's fee was "intended to provide support to [Wife] and ordering that the judicial lien (granted to secure Husband's payment of special master's fees) shall not be discharged in Husband's bankruptcy. The COCA based its determination on the unsupported basis that "special master's fees and costs are not support for Wife. The fees were not paid to Wife for her use." The COCA further reasoned that 12 O.S. § 619 does not provide that a referee's compensation be intended to support a party in a divorce action." - Finally, the COCA concluded "[the trial court has no judicial authority to declare the judicial lien or special master's fees non-dischargeable in bankruptey. This determination is for the bankruptey court."

110 We disagree with the COCA's conclusions. Consistent with and pursuant to the exceptions to discharge section of the U.S. Bankruptcy Code, 11 U.S.C. § 528(a)(5) (2000) , Oklahoma courts recognize that an award in the nature of alimony, maintenance or support of the spouse or child may not be discharged in bankruptcy. Battles v. Battles, 1952 OK 2, 239 P.2d 794; Owens v. Owens, 1995 OK CIV APP 17, 897 P.2d 1145 (Released for publication by Order of the Supreme Court of Oklahoma). Oklahoma state courts have exercised their judicial authority in divorce actions to determine whether the nature of an obligation arising out of a divoree is intended for support and maintenance of the spouse and therefore, may not be discharged in bankruptcy as opposed to dischargeable property division. Seq, eg., Battles, 239 P.2d at 796 (holding obligation arising out of a contract between husband and wife was substantially for maintenance and support of wife and therefore not discharged by husband's bankruptcy); Turman v. Turman, 1968 OK 33, 433 P.2d 488 (holding court-decreed obligation to pay attorneys' fees is in the same category as the obligation to pay alimony); Johnson v. Johnson, 1969 OK 142, 460 P.2d 954 (holding the purpose behind the divorce decree award to wife was to provide for her support and maintenance and is therefore, non-dischargeable in bank-ruptey even though the decree did not expressly designate the award as in the nature of support); Davis v. Davis, 1979 OK 40, 593 P.2d 88 (holding state law governs the determination whether a decreeimposed obligation to pay a jointly incurred marital debt was in the nature of non-dischargeable spousal support or dischargeable property division); Owens, 897 P.2d at 1147 (holding divorce-decree imposed obligation to pay two mortgages on the parties' jointly held real property is in the nature of support and non-dischargeable in bankruptcy). While we ree-ognize there is federal case law, which provides the determination of whether an obligation arising out of a divorcee settlement is in the nature of alimony, maintenance or support is a matter of federal bankruptcy law, see, e.g., Sylvester v. Sylvester, 865 F.2d 1164, 1166 (10th Cir.1989), our state courts have concurrent jurisdiction to determine this question. See Davis, 593 P.2d at 90; Owens, 897 P.2d at 1147; Riedel v. Riedel, 1992 OK CIV APP 166, 844 P.2d 184, 186; see also In re Franklin, 179 BR. 913, 920 (Bankr.E.D.Cal.1995) (providing the general rule is that state and federal courts have concurrent jurisdiction to decide the issue whether a divorce-based debt is in the nature of non-dischargeable alimony or support). Additionally, federal courts look to state law for guidance in determining whether a particular obligation arising out of a divorce action is a non-dischargeable obligation in the nature of alimony, maintenance or support. See In re Lane, 147 B.R. 784, 786 (Bankr.N.D.Okla.1992) (listing seven factors to be considered, the first of such factors being how the state court labeled the award). In this case, special master asserts that the Bankruptey Court requested the trial court's determination as to whether Husband's obligation to pay special master's fees and costs was in the nature of support and therefore, non-dischargeable. Although we cannot confirm the veracity of special master's assertion because of the absence of evidence in the record regarding the Bankruptey Court proceedings, we note Husband does not dispute this assertion. - However, even if the Bank-ruptey Court had not specifically requested the trial court's conclusions in this regard, we hold it was nonetheless proper for the trial court to make such a determination in this case that Husband's obligation arising out of the divorce action to pay the fees and costs of special master was in the nature of support and non-dischargeable in bankruptcy.

{11 Turman v. Turman and Owens v. Owens further clearly demonstrate there is no requirement that the payments pursuant to an award arising out of an Oklahoma divorce action be paid directly to the spouse in order to constitute an obligation in the nature of alimony, maintenance or support. In Turman, the obligation deemed in the nature of alimony was not to be paid directly to the former spouse, but rather, directly to her attorney for fees for legal services in representing the former spouse in the subject divorce action she instituted. Turman, 438 P.2d at 490. The obligation in: Owens, which was determined there to be in the nature of support was the husband's divorce-decree imposed obligation to pay two mortgages on the parties' jointly held real property including the marital home. Owens, 897 P.2d at 1147. In both Turman and Owens, while the former spouse in each respective case was the recipient of the benefit of the award in that she was spared the burden of having to pay a debt arising out of a divorcee, it was a third-party, namely the former spouse's attorney in Turman and the mortgagee in Owens, which actually received direct payment. We further note the reasoning in Turman v. Turman is notably applicable in this instance. In Turman, we recognized "the necessity of the services of [the former spouse's] attorney, and that the provisions for payment for said services is a necessary cost, or expense, in an action for divorce and alimony, and to Insure ... the 'efficient preparation' and 'prosecution or defense of such an action'" Turman, 438 P.2d at 490 (citations omitted). Finally, we determined that "the obligation to pay the attorney fee assessed against the bankrupt for such services is an 'accessory' to the alimony and 'follow(s) the nature of the liability' therefor, just as truly as do the costs of the action." Id. (quoting Smith v. Smith, (D.C., W.D., N.Y.) 7 F.Supp. 490, 491). In this case, the record is clear the trial court's appointment of a special master was necessitated by the recalcitrant actions of Husband (in dissipating marital assets and his defiant, uncooperative discovery tactics) and by the complex nature of the marital estate. The trial court expressly provided in its order of September 4, 2001, that the order requiring Husband to pay special master's fees and costs and the judicial lien granted to special master over Husband's property to secure such payment were intended to provide support to the [Wife] "by allowing her to use the money awarded to her for support instead of using the money for payment of the attorney's fees and costs of the special master." Given the complexities of the accounting matters of the case and the particular need for special master's control over the marital estate to prevent Husband's dissipation thereof, the necessity of the services of the special master in this case was no less compelling than the necessity of the services of the former spouse's attorney in the divoree at issue in Turman. Further, just as the attorneys' fee in Turman was deemed an accessory to alimony, the obligation to pay the special master's fees and costs assessed against the bankrupt Husband for such services in this case is likewise akin to an accessory to the alimony and follows the nature of the liability therefor. Therefore, the COCA erred in its determination that because special master's fees "were not paid to Wife for her use," they may not be categorized as in the nature of support. We hold the trial court properly exercised its judicial discretion in its determination that its order requiring Husband to pay special master's fees and costs from the marital estate and the order awarding a judicial lien to special master were intended to provide support to Wife and therefore, non-dischargeable in Husband's bankruptcy.

III

SPECIAL MASTER'S MOTION FOR APPEAL-RELATED ATTORNEY'S FEES

{$12 Special master filed his "Motion for Appellate Attorney's Fees" pursuant to 12 0.8. § 696.4(C), such motion having been separately identified and contained within his Answer Brief on appeal. In addition to citation to 20 0.8. § 15.1 and one COCA case construing $ 15.1, special master additionally argues "compelling and overriding equitable considerations created by Husband's delay, hindrance and general uncooperativeness" justifies the award of appeal-related attorney's fees to special master in this case.

%13 The general rule is "[alppeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court." Casey v. Casey, 2002 OK 70, ¶ 26, 58 P.3d 763, 772 (footnotes omitted). This case presents a unique question concerning a non-party's quest for appeal-related attorney's fees. We are unaware of express statutory authority for the recovery of a special master's attorney fees. However, statutory authority exists for the award of "compensation [to referees] for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case." 12 0.S. § 619 (emphasis added). Further, § 619 has been interpreted to apply to compensation of special masters. Oklahoma Oil & Gas Exploration Drilling Program v. W.M.A. Corp., 1994 OK CIV APP 11, 877 P.2d 605, 612.

{14 In this case, the trial court ordered Husband to pay the fees and costs of special master and the COCA affirmed this award pursuant to 12 0.8. § 619. While we agree with the lower courts' determination that special master was entitled to recover fees and costs as compensation for his services in accordance with § 619, we disagree with the COCA's characterization of § 619 as statutory authority for an attorney fees award. Since § 619 does not authorize an attorney fees award in the trial court, it follows that 12 0.8. § 619 is likewise an improper basis for special master's recovery of appeal-related attorney fees.

T15 Special master seeks recovery of appeal-related attorney fees pursuant to 20 0.8. § 15.1, which permits "the prevailing party [to] petition the court for an additional attorney fee for the cost of the appeal." We have construed this statute to permit the recovery of appeal-related attorney fees against an appealing party bringing a "patently frivolous appeal," which is an appeal with "absolutely no legitimate legal or factual basis." TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 22. Based upon our review of the record, it cannot be concluded that Husband's appeal lacked any legitimate legal or factual basis, although Husband was ultimately unsuccessful. Since Husband's appeal cannot be characterized as patently frivolous, special master is therefore not entitled to recovery of his appeal-related attorney fees pursuant to 20 0.8. § 15.1.

116 Finally, to the extent special master's assertion of "compelling and overriding equitable considerations" equates to a demand for the balancing of judicial equities as between special master and Husband, special master cites no authority in support of the application of such a balancing of judicial equities test as between a non-party special master and a party to an underlying divorce action in support of recovery of appeal-related attorney fees. A proposition which is unsupported by citation to authority will not be considered on appeal. Witt v. Westheimer, 1988 OK 249, 79 P.2d 250; Mid-Continent Cas. Co. v. Jenkins, 1967 OK 54, 431 P.2d 349; see Vernor v. Poorman, 1916 OK 608, 158 P. 615 (providing "attorneys who present cases here have no right to place the burden upon this court and consume their time in a laborious research for authorities to support their argument."). In light of these authorities, special master's Motion for Appeal-Related Attorney's Fees is denied.

IV

SUMMARY

T 17 In sum, we hold the trial court did not abuse its discretion in characterizing the obligation arising out of this divorce action that Husband pay special master's fees and costs and judicial lien over Husband's property granted to special master to secure payment of such fees and costs as in the nature of support for the Wife and therefore non-dis-chargeable in Husband's bankruptcy and the COCA erred in determining the trial court lacked judicial authority to make such a determination in this case. The trial court's September 4, 2001 order awarding special master fees and costs in the amount of $48,708.40 is affirmed in its entirety.

18 Upon certiorari previously granted,

THE COURT OF CIVIL APPEALS OPINION IS VACATED; JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

119 WATT, C.J., HODGES, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER and EDMONDSON, JJ., concur.

1 20 OPALA, V.C.J., concurs in part; dissents in part.

OPALA, V.C.J.,

dissenting in part.

T1 The court reverses today the trial court's counsel-fee award to the special master and denies his appeal-related attorney's fee quest. I agree with the court's pronouncement insofar as it rejects the notion that the provisions of 48 0.S8.2001 § 110(D) are invocable here to support the special master's claim for a counsel-fee award. I disagree that the fee award is not sustainable by another legislative source. The provisions of 12 0.8.2001 § 986 authorize an allowance of attorney's fee in an action to recover "for services." A special master's claim for professional services is clearly comprised within the purview of § 986.

I

A SPECIAL MASTER'S QUEST FOR AN ATTORNEY'S FEE PRESENTS AN ANCILLARY CLAIM

T2 The court has apparently adopted the mistaken view that a special master's compensation quest is not fit for classification as a claim. I disagree. It is as much a court claim as any other. It falls under the rubric of ancillary claims. Our pronouncement in Rand v. Nash empowers a judge to appoint an "arm of the court" to secure needed services. One so appointed has an ancillary claim for the value of services. A dispute over liability for the services may be treated by a court as ancillary to a case. The special master's counsel-fee quest for trial-related legal services stands preserved here by his timely nisi prius request and by his later demand, made both in the petition in error and the brief, for an appeal-related attorney's fee.

II

THE SPECIAL MASTER'S COUNSEL-FEE AWARD SHOULD BE AFFIRMED BASED ON A DIFFERENT LEGISLATIVE AUTHORITY SOURCE FROM THAT INVOKED BY HIS COUNSEL

T3 The special master's claim to affir-mance of his nisi prius counsel-fee award is neither fatally nor eternally flawed by his erroneous district-court reliance on the terms of 43 0.98.2001 § 110(D). A nisi prius judgment or order must be affirmed if it is supported by any applicable legal principle. This court's decision in Barnes v. Oklahoma Farm Bureau Insurance Co. conflicts with its fee rejection today. In Barnes the court invalidated the wrongly rested counsel-fee award but remanded the cause with directions that the plaintiff be permitted to explore for the availability of other authorities. Barnes supports the view that no litigant should be barred from relief by relying on the wrong statute for securing a counsel-fee award.

II

BY THE AUTHORITY OF 12 0.S8.2001 § 936 A SPECIAL MASTER MAY BE GRANTED A COUNSEL-FEE AWARD FOR SERVICES INCIDENT TO A § 619 COMPENSATION RECOVERY

T4 The terms of 12 O.S. § 986 apply to all parties whose claims for services prove successful, whether in demands pressed by their action or in proceedings ancillary to the action. Hamilton v. Telex. Corp. teaches that the totality of an attorney's compensation includes time spent on recovering an earlier court-granted fee. There the quest was rested on the terms of § 986. Here, the special master performed valuable services in a divorce proceeding. His status as an appointed arm of the court pressing an ancillary _ compensation-for-service - claim stands on a footing at least equal to others who provide services dehors a judicial appointment. The § 986 authority is invoca-ble by all prevailing parties in a quest for the value of performed services, whether by contract or court appointment. A compensation claim for a 12 0.8.2001 § 619 service may not be excluded from the benefit of § 936 without offending the state constitution's mandate for uniformity of court procedure.

{5 I hence recede from the court's view that § 619-either by its text or by its jurisprudential gloss-prevents a prevailing service renderer from invoking a $ 986 right to a counsel-fee award. The court has indeed used pure ipse dixit to pronounce today that a § 619 compensation-for-service recovery will not support the special master's counsel-fee quest. No extant jurisprudence negates the notion that a prevailing special master in a $ 619 proceeding is entitled to an attorney's fee authorized by $ 986.

IV

THERE IS NO STATUTORY OR JURISPRUDENTIAL AUTHORITY FOR THE COURTS SUB SILENTIO NOTION THAT A BENEFICIARY OF COURT-GRANTED COMPENSATION FOR SERVICES MAY NOT RECEIVE AN ATTORNEY'S FEE ABSENT SOME EXPLICIT LEGISLATIVE APPROVAL

T6 It appears that the court's refusal to affirm the trial court's counsel-fee allowance rests on its unsupportable sub silentio assumption. There is no jurisprudential basis for the notion that in the absence of some explicit legislative approval an attorney's fee may not be added to a judge-allowed compensation-for-service: recovery to one who acted as a court-appointed arm. Oklahoma case law supports the opposite view. In Hamilton this court granted a counsel-fee award to a lawyer for collecting and enfore-ing his own earlier-granted fee for legal services.

T7 Several federal jurisdictions have allowed recovery of additional fees expended for legal service in enforcing a court-granted counsel fee" The United States Court of Appeals for the Ninth Circuit has stated that not awarding an additional expense incurred in counsel-fee collection would "dilute" a counsel-fee allowance. National jurisprudence clearly approves of a counsel-fee award for services rendered in collection and enforcement of a court-granted fee.

18 A special master performs services pursuant to court appointment. As a prevailing party, a special master is as much entitled to an attorney's fee as are others who sue to recover for services rendered under a contract. If Hamilton (and national jurisprudence) allow a lawyer's fee award to be augmented by the time spent on enforcing that award, a special master's compensation for court-required services may also be enhanced by the value of legal work rendered to secure and enforce the master's judicially approved compensation in the case.

y

THE SPECIAL MASTER IS ENTITLED TO AN APPEAL-AS WELL AS A CERTIORARI-RELATED - ATTORNEY'S FEE

T9 When statutory authority supports one's quest for an attorney's fee as a prevailing party in a proceeding for services, a counsel-fee award may also be allowed for legal services in the reviewing courts. It is hence appropriate here to authorize an attorney's fee for the special master to compensate him for legal services on review. The provisions of § 986 afford ample legal basis for that award. In short, the special master should be allowed an attorney's fee for appeal- and certiorari-related legal services.

VI

THE COURT IS MISTAKEN IN THE AMOUNT OF RECOVERY IT AFFIRMS TODAY

[ 10 Although the court reverses today the trial court's award of an attorney's fee, it nevertheless mistakenly allows that fee by affirming the nisi prius judgment for $48,703.40. That amount includes an attorney's fee. The stated figure is hence plainly in error. According to the record, the sum of $48,780.40 represents both recovery and attorney's fee for the trial-related services, rather than solely the § 619 compensation to the master. Severing the total award into two parts-recovery and fee-would be impossible. The materials in the record do not show these figures separately.

VIH

SUMMARY

4 11 I would affirm the award of $48,708.40 for the master's compensation-for-service recovery and for his nisi prius counsel-fee al-lowanee; I would also authorize that he be granted an additional fee for review-related legal services.

      . Husband disputed the characterization of this business entity as marital property, as he claimed it was created during the parties' previous separation/divorce proceeding, which was dismissed in 1996 upon the parties' reconciliation. Husband argued that at the time AC Rentals, Inc. was created, two trusts were created for the parties' respective separate benefit, which holds all the stock for AC Rentals, Inc. with Husband owning 55% of the shares and Wife owning 45% of the shares. Ultimately, in its March 25, 1999 Order, the trial court concluded that "the disputed property (the corporate stock placed in the respective irrevocable trusts of the parties) is a part of the marital estate and subject to equitable division."

      . The record contains numerous applications for contempt of court filed by Wife for Husband's failure to comply with court orders, ie., failure to pay temporary support alimony and child support and other court-ordered expenses for the month of June, 1998, failure to pay special master's fees and parenting coordinator's fees, and failure to pay the lump sum property division payment of $75,000 pursuant to the Consent Decree of Divorce. Special master also applied for indirect contempt citation for Husband's refusal to produce documents in response to special master's discovery requests, which resulted in the trial court's issuance of a February, 8, 2000 Citation for Indirect Contempt of Court for Husband's knowing, wilful, and intentional failure to comply with the trial court's August 27, 1999 order compelling production of such documents. I

      . The record reflects that throughout the divorce proceedings, Husband demonstrated a pattern of excessive spending with a failure to document and/or. explain such expenditures. Additionally, evidence was presented regarding Husband's wire transfers in excess of $47,000 to various accounts including accounts in Venezuela, South America purportedly to pay gambling debts. Additionally, Husband failed to disclose the existence of a safe deposit box containing $21,000 cash, which was ultimately discovered through investigative efforts of the special master and seized pursuant to the trial court's emergency order of December 21, 1999.

      . - One such piece of evidence included a residential loan application of June 4, 1998 (attached as an exhibit to Wife's September 16, 1998 Amended Motion to Modify Temporary Order as to Temporary Support), upon which Husband was listed as a co-borrower, wherein he indicated his income from A-C Air was $5,000 per month and that his net income from A-C Rentals, Inc. was $13,000 for a total of $18,000 per month. Husband's support obligation had previously been determined on the basis of income he reported to the court in April, 1997, and although that income amount used by the court in making its initial determination is unclear from the record, the initial support alimony/child support award was $1,800 per month. In Husband's handwritten pro se Motion to Modify Temporary Order of October 12, 1999, while he did not dispute the income amount he listed in the residential loan application (certified as true and correct by Husband's signature thereon as of June 4, 1998), he attacked such evidence as "primitive technique of determining income for child support purposes," arguing that his actual monthly income at the time was $2,164. The trial court modified the temporary support amount to $2,880 per month in light of the evidence presented concerning Husband's true income and also additional evidence presented concerning Husband's recent major expenditures (such as $2,369.00 for a tanning bed, $1,653.86 to "Victoria's Secret," and $8,279.00 to Ballard Ford on behalf of Husband's girlfriend), which demonstrated Husband's ability to pay the additional amount requested by Wife.

      . Wife's Amended Motion to Modify Temporary Order as to Temporary Support and Visitation Schedule and for Temporary Attorneys Fees and Suit Money, September 16, 1998, p. 14 145.

      . Id. at 1 46.

      . Plaintiff's Response to Appointment of Special Master, September 29, 1998, p. 1.

      . The parties to the appeal refer to this Order [of appointment of the special master] as the Order of September 21, 1998, but we note this Order was actually file-stamped on December 14, 1998. For purposes of clarity, we will simply refer to this order as the order of appointment. See Order of Appointment p. 2, 15. This Order provided for the appointment of Ken Klingenberg as special master unless Husband provided written objection within five (5) days of the Order. Husband filed his objection with his September 29, 1998 Response to Appointment of Special Master, and, without waiving his general objection to the appointment of a special master in the case, he proposed the appointment of an alternate special master, Virginia Meadows, President/CEO of Washita State Bank. Wife objected to the alternate master, citing lack of expertise and conflict of interest reasons due to Husband's longstanding and ongoing business relationship with Washita State Bank. In its Order of October 1, 1998, the trial court formally appointed Ken Klingenberg and rejected Husband's alternate special master due to an appearance of conflict of interest.

      . Husband's Motion asserted the appointment of a special master in this case was inappropriate, as "this is a relatively simple divorce case that is being completely blown out of proportion." Husband additionally complained that special master appeared to be taking on the role as an advocate for the wife, given special master's position that the AC Rentals, Inc. business constituted marital property. See Husband's Motion to Discharge Special Master, p. 11.

      . - Oklahoma Supreme Court case no. 93,101.

      . - Special master's Answer Brief and Petition for Certiorari contain specific information concerning the Bankruptcy proceeding including the assertion that special master sought relief from the automatic stay, which was granted by the Bankruptcy Court on July 23, 2001, Additionally, special master asserts "[the Bankruptcy Court lifted the automatic stay so that the trial court could decide the interest of the special master in the divorce." In his Petition for Certiorari, special master criticizes the COCA in this case for "ignor[ing] that the Bankruptcy Court expressly asked the trial court to make such a determination [that the special master's fees were in the nature of support and not dischargeable in bankruptcy]." Husband's brief contains merely an acknowledgment that he filed his Chapter 13 Bankruptcy Petition on March 7, 2001 and that "events in the bankruptcy court lie outside the record." While we note the record is silent concerning the bankruptcy, we also note Husband did not dispute any of special master's assertions regarding the bankruptcy proceedings.

      . Husband did not file a response to special master's Petition for Certiorari, nor has he requested certiorari review of the issues he lost before the COCA. Therefore, his failed challenges regarding the propriety of the appointment of the special master, the scope of authority and/or conduct of the special master in the case, the scope of the relief granted in the trial court's order in granting the judicial lien, and the award of the special master's fees and costs taxed against Husband have not been properly preserved for review and therefore, will not be considered by us on certiorari. See Hough v. Leonard, 1993 OK 112, 867 P.2d 438; May-Li Barki, M.D., Inc. v. Liberty Bank & Trust, Co., 1999 OK 87, ¶ 7, 20 P.3d 135, 143 (Opala, J., Supplemental Opinion).

      . 12 0.5.2001 § 619 provides as follows: "The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case." Id. Reference of accounting matters to a special master or referee is specifically authorized by statute. 12 O.S. § 613; see State ex rel. Smith v. District Court of Osage County, 1941 OK 128, 112 P.2d 381 (1941). We have held that "special judges may be used in contested matrimonial disputes as referees to aid the court with resolution of complex valuation or accounting issues." Lee v. Hester, 1982 OK 30, 642 P.2d 243, 245. The COCA has also held that compensation of special masters shall also be taxed as costs pursuant to § 619 and that the trial court may award and tax costs as in its discretion it determines is 'right and equitable.' " Oklahoma Oil & Gas Exploration Drilling Program v. W.M.A. Corp., 1994 OK CIV APP 11, 877 P.2d 605, 612.

      . 11 U.S.C. § 523.(a) (2000) provides in pertinent part as follows: "A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt-

      (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement...."

      . 20 0.8. § 15.1. Appeals-Additional attorney fees
      "On any appeal to the Supreme Court, the prevailing party may petition the court for an additional attorney fee for the cost of the appeal. In the event the Supreme Court or its designee finds that the appeal is without merit, any additional fee may be taxed as costs."

      . See supra note 13.

      . We recognize the existence of the "balancing of judicial equities" test in the context of an award of counsel fees to a litigant in divorce or subsequent related actions pursuant to 43 O.S. § 110. See Casey v. Casey, 2002 OK 70, 126, 58 P.3d 763, 772. However, special master does not cite § 110 in support of his quest for appeal-related attorney fees here. We have recently held 43 0.S$.2001 § 110(D) "only gives a trial court discretionary equitable authority to award attorney fees for or against 'the two original parties to the divorce case, i.e., the divorced spouses, based on a judicial balancing of the equities between those two parties." - Fulsom v. Fulsom, 2003 OK 96, ¶ 1, 81 P.3d 652, 654 (emphasis added). Section 110 was amended in 2002 and 2003. Subsection 110(D) is now found at § 110(B).

      . For the pertinent terms of 12 0.$.2001 § 936 see infra note 8.

      . 1935 OK 1086, 18, 51 P.2d 296, 298.

      . The district court is duty-bound to consider an ancillary claim correctly invoked by one whom the court appointed to render service in a case. Rand, supra note 2 at I 8, at 298.

      . Tisdale v. Wheeler Bros. Grain Co., 1979 OK 94, ¶ 3, 599 P.2d 1104, 1105; Chicago R.I. & P.R. Co. v. Rittenhouse, Hanson, & Evans, 1955 OK 133, ¶ 10, 285 P.2d 186, 189; Opperud v. Bussey, 1935 OK 1221, ¶ 14, 172 Okla. 625, 46 P.2d 319, 321; Simpson v. Baker, 1926 OK 957, ¶ 6, 123 Okla. 118, 252 P. 834, 835.

      . There is no need here to comment on the now-rejected legal authority the district court assigned to support its fee allowance. A legally supportable judgment must be affirmed, even though rested below on an incorrect legal premise. Myers v. Lashley, 2002 OK 14, ¶ 7, 44 P.3d 553, 557; Akin v. Missouri Pacific R. Co., 1998 OK 102, ¶ 35, 977 P.2d 1040, 1054; Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, ¶ 22, n. 40, 917 P.2d 456, 465, n. 40; Matter of Estate of Maheras, 1995 OK 40, ¶ 7, 897 P.2d 268, 272.

      . 2000 OK 55, 157, 11 P.3d 162, 182.

      . Barnes, supra note 6.

      . The pertinent terms of 12 0.S.2001 § 936 provide: "In any civil action to recover for labor or services rendered ... unless otherwise provided by law ... the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs."

      . 1978 OK 33, % 6, 576 P.2d 769, 770.

      . Hamilton, supra note 9.

      . Had the special master filed his claim in a separate action, he would have undoubtedly been entitled to relief under § 936.

      . The terms of 12 0.$.2001 § 619 provide: ''The referees shall be allowed such compensation for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case."

      . The terms of Art. 5, § 46, Okl. Const., provide in pertinent part: 'The Legislature 'shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing ... [rlegulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts."

      . Hamilton, supra note 9.

      . The so-called American rule requires that authority to grant an attorney's {ee be rested either on contract or legislation. Sisney v. Smalley, 1984 OK 70, ¶ 7, 690 P.2d 1048, 1049; Garner v. City of Tulsa, 1982 OK 104, ¶ 32, 651 P.2d 1325, 1329-30. In contrast, the extent or quantum of an allowable fee recovery may rest solely on a norm of the common law. Hamilton, supra note 9.

      . Burke v. Guiney, 700 F.2d 767, 772 (1st Cir.1983)(allowing a counsel-fee award for contempt sanctions); Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1305 (11th Cir.1988)(a claimant was allowed compensation for services rendered until all the court-granted fee was obtained); Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 538, 545 (10th Cir.2000)(allowing the collection of post-judgmenit fees under the provisions of the False Claim Act as well as under the provisions of 42 U.S.C. § 1988). Vukadinovich v. McCarthy, 59 F.3d 58, 60 (7th Cir.1995)(awarding costs of collection becomes necessary to carry out a judg-men? when entitlement to a fee is established).

      . Stanford Daily v. Zurcher, 64 F.R.D. 680, 684 (N.D.Cal.1974), aff'd, 550 F.2d 464 (9th Cir. 1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

      . Sisney, supra note 15 at ¶ 20, at 1051; Chamberlin v. Chamberlin, 1986 OK 30, ¶ 13, 720 P.2d 721, 728; Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, ¶ 46, 736 P.2d 140, 154.

      . The 4 Sept. 2001 nisi prius order awarded the special master "fees and costs."" These are termed as "said attorney's fees and costs."

      . My careful perusal of the record did not yield separate figures either for the total of the special master's § 619 compensation-for-service recovery or for his nisi prius counsel-fee allowance.


source: Caselaw Access Project

license: Public Domain

text:
    2004 OK CR 22
    UNITED STATES OF AMERICA, Plaintiff v. Mike Paul SAWYER, a.k.a. Motor Mike, Defendant.
    No. CQ-2004-240.
    Court of Criminal Appeals of Oklahoma.
    June 8, 2004.
   ORDER ANSWERING CERTIFIED QUESTION OF LAW

T1 The Honorable Sven Erik Holmes, Chief Judge for the United States District Court for the Northern District of Oklahoma, has certified the following question pursuant to the Revised Uniform Certification of Questions of Law Act, 20 0.8.2001, § 1601-1611:

Whether police officers from Lawrence, Kansas, who identified themselves as police officers to the owner of a building located in Bartlesville, Oklahoma, but informed the owner prior to requesting consent to search that they were from Kansas and without authority to arrest him, could legally conduct such a search in Oklahoma, and whether the fruits of the subsequent search are admissible in evidence, considering that both Oklahoma and Kansas have statutory prohibitions against police officers acting in their official capacities outside their respective jurisdictions?

12 The following relevant facts were provided by the certifying court:

In August 2000, two police officers from Lawrence, Kansas (hereafter "Kansas officers"), investigating stolen motorcycles and motors, traveled to Bartlesville, Oklahoma, to interview Defendant. The Kansas officers notified the Bartlesville Police Department they would be coming in to Bartlesville as part of their investigation, but their travel to Oklahoma and investigation was not requested by the Bartlesville Police Department. When the Kansas officers arrived in Bartles-ville, they stopped at the Bartlesville Police Department, informed the department they were in the city and the purpose of their visit. The Kansas officers then went to Defendant's place of employment. They were not accompanied by any member of the Bar-tlesville Police Department.

T3 At Defendant's place of employment, the Kansas officers identified themselves as police officers to Defendant's company manager. Through the manager, the Kansas officers arranged to interview Defendant in a private office located at his place of employment.

1 4 Upon contact with Defendant, the officers identified themselves as Kansas police officers and told Defendant he was not under arrest because they were without authority to arrest him in Oklahoma. The Kansas officers wore street clothes with badges, handcuffs, and firearms on their belts. The Kansas officers read Defendant his Miranda rights and interviewed Defendant for about one hour. Defendant provided the officers with both a written and verbal statement.

T5 After Defendant provided his statement, the Kansas officers asked Defendant to take them to his motoreyele motor sales business in Bartlesville. Kansas officers followed Defendant, who drove in his personal vehicle, to the location of his business. At the shop, at the request of Kansas officers, Defendant unlocked the door and allowed them inside. Once inside, the Kansas officers asked Defendant to sign an official Consent to Search form from the Lawrence Kansas Police Department. Defendant signed the consent form.

T6 The Kansas officers then searched Defendant's business. Towards the end of their search, after finding numbers on most of the engines, the Kansas officers contacted the Bartlesville Police Department and asked them to bring a camera to the business. Three Bartlesville police officers came to Defendant's business and took photographs. At the request of the Kansas officers and with Defendant's consent, the three Bartlesville police officers removed six engines from Defendant's shop; three had altered serial numbers and three were believed stolen.

T7 The Kansas officers then obtained consent from Defendant to take records from his residence, and there they obtained additional records from Defendant's wife. Afterwards, Defendant was interviewed again by the Kansas officers at the Bartlesville Police Department.

T8 Four days later, the Kansas officers notified the Bartlesville Police Department of the results of their investigation/examination of the serial numbers from the engines seized from Defendant's shop. The next day, Bar-tlesville police officers obtained a search warrant from a judge of the State of Oklahoma for another search of Defendant's shop. Bartlesville police officers executed that warrant and seized additional items which included seventeen motorcycle motors.

T9 The United States District Court for the Northern District of Oklahoma found at all times the Lawrence Kansas police officers were acting under color of law.

AUTHORITY TO ANSWER

{10 Oklahoma adopted the Uniform Certified Question of Law Act in July of 1978. 20 0.8.2001, § 1601. Pursuant to the Act, this Court

may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling decision of the Supreme Court or the Court of Criminal Appeals, constitutional provision, or statute of this state.

20 0.98.2001, § 1602; see Canady v. Reynolds, 1994 OK CR 54, ¶ 8, 880 P.2d 391, 393. "This Court has the power to give the present state of the law as well as use the opportunity to create new precedents" when answering a certified question of law. Moore v. Gibson, 2001 OK CR 8, ¶ 6, 27 P.3d 483, 485; Canady, 1994 OK CR 54, 112, 880 P.2d at 395. In so doing, we may reformulate or reinterpret a question of law certified to this Court. Gibson, id.; Canady, id.

DISCUSSION

(11 Generally, a police officer's authority cannot extend beyond his jurisdiction. Graham v. State, 1977 OK CR 1, ¶¶ 13-14, 560 P.2d 200, 203. Recognized exceptions to this general rule are (1) hot pursuit, (2) when one municipality has requested assistance pursuant to 11 0.8.2001, § 34-108, and (8) when an officer is serving an arrest warrant. Id., 1977 OK CR 1, ¶ 14, 560 at 203, 560 P.2d 200, citing United States v. Braggs, 189 F.2d 367 (10th Cir.1951)(hot pursuit); 11 0.8.2001, § 27-113 (service of arrest warrant "any place within this state"); 11 0.9.2001, § 34-103 (requesting assistance from another municipality). Otherwise, once outside the city limits of the municipality by which they are employed, the officer acts as a private citizen with no greater authority than that of a private citizen. Staller v. State, 1996 OK CR 48, ¶ 10, 932 P.2d 1136, 1139-1140; see also State v. Ramsey, 1993 OK CR 54, ¶ 10, 868 P.2d 709, 712; Phipps v. State, 1992 OK CR 32, ¶ 9, 841 P.2d 591, 593.

112 This Court's decision in Phipps is dispositive of the question certified. In Phipps, this Court held a police officer acting outside his jurisdiction may not conduct a consensual search if the consent is obtained while the officer is acting under color of law. Id., 1992 OK CR 32, 17, 841 P.2d at 598. In Phipps, where the officer identified himself as a police officer and showed his badge before obtaining consent to search, we noted:

[there can be no doubt, however, that had a private citizen told appellant they suspected she was transporting marijuana and asked to look in her trunk, appellant would not have let them. Thus, it is clear that Officer Kinney was acting under color of law and the appellant believed that he had such authority when he asked to search appellant's vehicle We therefore hold that the search of appellant's car while it was beyond the Tulsa city limits is invalid, and the seizure of the contraband from such search should have been suppressed.

Id., 1992 OK CR 32, 112, 841 P.2d at 593-594.

1 13 In this case, there is no question that the Kansas officers were outside their jurisdiction. Their actions were not authorized by any interlocal governmental agreement relating to law enforcement. Neither 11 0.8. 2001, § 34-103 nor K.S.A. (2001) § 22-24012 mentions or contemplates extending a municipal police officer's jurisdiction from one state to another state.

T14 Further, the District Court found the officers were "at all times relevant hereto . acting under color of law." While the Kansas officers told Defendant they were without authority to arrest him, after they mirandized Defendant and questioned him for over an hour, they asked for consent to search his business and asked him to sign an official Consent to Search form from the Lawrence Kansas police department. A private citizen, acting without official authority, who asks another to search his home or business would not ask such person to also sign a written consent form with a police division name on it. As we noted in Phipps, it is highly doubtful a person would sign such a consent under those cireumstances. It is evident these officers were not acting as private citizens and, through their display of official authority, they obtained consent to search from Defendant. Such consent, under Phipps, was invalid.

15 "At some point near the end of the search," the Kansas officers contacted the Bartlesville police department because they needed a camera to photograph items discovered during their search. Again, upon request of the Kansas officers, Defendant consented in writing to allow six engines to be removed from his shop. A few days later, the Kansas officers notified the Bartlesville police officers of the "results of their examination of the serial numbers on the engines found" at Defendant's shop, and the Bartles-ville officers used that information to obtain a search warrant.

116 Defendant's initial consent for the Kansas officers to search his business was invalid. Any evidence seen or obtained during that search could not be used to establish probable cause in the subsequent affidavit for a search warrant. State v. Stuart, 1993 OK CR 29, ¶ 19, 855 P.2d 1070, 1074; Phipps, 1992 OK CR 32, ¶ 12, 841 P.2d at 594; Dale v. State, 2002 OK CR 1, ¶ 10, 38 P.3d 910, 912 (fruits of search based upon involuntary consent would be suppressed). The evidence seized during the initial search as well as the evidence seized pursuant to the subsequently issued search warrant should be suppressed.

117 The Kansas officers' request for assistance from the Bartlesville police department in photographing evidence and their second request for consent before removing items from the business was not a sufficient intervening cause to purge the taint of the initial invalid consent and resulting unlawful search. See McGaughey v. State, 2001 OK CR 33, ¶ 40, 37 P.3d 130, 141; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)(original taint of impropriety may be removed by intervening circumstances). Had the Kansas officers not gained entry to Defendant's business under color of law, they would not have gained entry at all and would not have had the opportunity to see and seize evidence with or without the assistance of the Bartlesville police department. We find no significant intervening factor occurred between the entry based upon invalid consent and any subsequent consent obtained in the presence of the Bartlesville officers "at the request of the Kansas officers."

18 Lastly, the facts provided suggest the Bartlesville police department used information gained by the Kansas officers during their search of Defendant's business to obtain a search warrant from a judge of this State for another search of Defendant's business. That search resulted in the seizure of seventeen additional motorcycle motors.

{ 19 The evidence obtained pursuant to the search warrant also must be suppressed, because the evidence establishing probable cause for the issuance of the warrant was obtained by the Kansas officers acting under color of law while conducting the unlawful search of Defendant's business,. Lucas v. State, 1985 OK CR 100, ¶ 11, 704 P.2d 1141, 1142 (evidence seized pursuant to a search warrant was discovered by exploitation of the illegal vehicle search would be suppressed as fruit of the poisonous tree); Wong Sun, 371 U.S. at 484, 83 S.Ct. at 416 (exelusionary prohibition of evidence seized during an unlawful search extends to the direct and indirect products of the search). All of the evidence seized during the search of Defendant's business was found as a direct result of actions taken by the Kansas officers while they were acting under color of law.

ANSWER

120 For the reasons set forth above, we answer the question submitted as follows: Under Oklahoma law, police officers acting outside their jurisdiction under color of law, cannot legally obtain consent to search. As a result, the fruits of any subsequent search would not be admissible.

1 21 IT IS SO ORDERED.

122 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 8" day of June, 2004.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lille, Dissenting. I join in Judge Lumpkin's Dissent STEVE LILE, Vice Presiding Judge

/s/ Gary L. Lumpkin, Dissent (Writing Attached) GARY L. LUMPKIN, Judge

/s) Charles S. Chapel CHARLES S. CHAPEL, Judge

/s) Reta M. Strubhar RETA M. STRUBHAR, Judge

LUMPKIN, J.,

Dissenting.

[ 1 I must respectfully dissent to the analysis and answer provided to the certified question of law. The issue presented by the fact situation submitted by the United States District Court for the Northern District of Oklahoma is the ability of an officer to conduct an investigation outside his or her jurisdiction, not affect an arrest. This Court's Order fails to recognize that distinction.

T2 In Oklahoma, the authority to arrest, either as a law enforcement officer or a private citizen, is controlled by statute. See 22 0.9$.2001, §§ 186-209. It is these statutes that our case law has interpreted with regards to police officers acting outside of their jurisdiction. Now this Court seeks to apply this law relating to arrests to an entirely different area of criminal law procedure, Le. pre-charging investigation and due process. I submit the Order fails to recognize and, in turn, apply the correct legal analysis to the facts presented.

T3 Initially, we must recognize that Oklahoma does not have statutes which control the type of pre-charging investigation conducted by the law enforcement officers in this case. Therefore, we must look to state and federal case law for guidance.

4 4 The U.S. Supreme Court, as well as the Tenth Cireuit Court of Appeals, has determined that there are three general types of encounters between citizens and the police. These are: (1) consensual encounters that are not Fourth Amendment Seizures since they only involve a person's voluntary cooperation with an officer's non-coereive questioning; (2) investigative detention, which are Fourth Amendment seizures justified only if there is a reasonable suspicion that the person has committed or is committing a crime; and (8) arrests which are Fourth Amendment seizures characterized by highly intrusive or lengthy detention and justified only if there is probable cause to believe that a person has committed or is committing a crime. Terry v. Ohio, 892 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Hishau, 235 F.3d 565, 569 (10th Cir.2000).

T5 For the following reasons, this case falls under the category of a consensual encounter between the police and the defendant. In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court recognized that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. In analyzing whether a seizure or a consensual encounter has taken place, a court must consider all the cireumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter. Id.

T6 In U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 LEd.2d 497 (1980), the Supreme Court said:

Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.

446 U.S. at 558-554, 100 S.Ct. at 1877 (internal citations omitted).

T7 The Tenth Circuit, in United States v. Zapata, 997 F.2d 751 (10th Cir.1993), enumerated a number of factors to consider in determining whether a police-citizen encounter becomes a seizure. The court stated that we must look at the location of the encounter, "particularly whether the defendant is in an open public place where he is within the view of persons other than law enforcement officers; whether the officers touch or physically restrain the defendant; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officer; whether and for how long the officers retained the defendant's personal effects, such as tickets or identification; and whether or not they have specifically advised defendant at any time that he had the right to terminate the encounter or refuse consent." Id., at 756. See also United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) overruled on other grounds, United States v. Little, 18 F.3d 1499, 1504 (10th Cir.1994) (the ultimate issue of whether a seizure occurred is a question of law.)

T8' An analysis of the above factors indicates that in the instant case a consensual encounter occurred between the Kansas officers and the defendant. First, the encounter occurred in a public setting, the defendant's place of business. The Kansas officers were dressed in plainclothes. Although they carried badges and weapons there is no indication either was used in a threatening or coercive manner. The officers identified themselves and informed the defendant they had no authority to arrest him. There was no show of force or restraint and the defendant was free to leave. Before talking with the defendant, the officers read him the Miranda warning. As the defendant was not in custody, it was not necessary for the officers to give him the Miranda warning. However, the Miranda warning did convey to the defendant that he did not have to answer the officers' questions. An analysis of all of these factors clearly establishes that the initial encounter between the defendant and the Kansas officers was consensual.

T9 After the initial interview, the defendant agreed to the officers' request to take them to his motoreycle motor sales business. The defendant drove separately, in his own vehicle, to the business, with the officers following behind. Once there, the defendant agreed to sign a consent to search form. As with the giving of the Miranda warning, it was not necessary for the officers to have obtained a signed consent form. As the Supreme Court stated in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973):

. when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact *249 to be determined from all the cireumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

412 U.S. at 248-249, 98 S.Ct. at 2059.

1 10 The Supreme Court also said:

While the Fourth and Fourteenth Amendments limit the cireumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person's voluntarily allowing a search.... And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment. We have only recently stated: "(Dt is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals." Rather, the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.

412 U.S. at 242-248, 98 S.Ct. at 2056. (internal citations omitted).

T11 In this case, there is no evidence of any inherently coercive tactiecs-either from the nature of the police questioning or the environment in which it took place. The search took place at the defendant's place of business. "Since consent searches will normally occur on a person's own familiar territory, the specter of incommunicado police interrogation in some remote station house is simply inapposite." Schneckloth, 412 U.S. at 247, 93 S.Ct. at 2058. There is no reason to believe, under cireumstances such as are present here, that the defendant's responses to the officers' questions was presumptively coerced. Therefore, there is no reason to reject the traditional test for determining the woluntariness of the defendant's response. Here, the record before us clearly establishes the defendant's consent for the officers' search was voluntary.

T12 The original question posed to this Court from Judge Holmes focused on whether the conduct of the Kansas officers was legal as they were acting outside of their jurisdiction. The issue of the exercise of a police officer's authority outside his/her jurisdiction has usually been addressed by the courts in the context of the officer's authority to affect an arrest. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 LEd.2d 607 (1975); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). See also U.S. v. Green, 178 F.3d 1099 (10th Cir.1999); Staller v. State, 1996 OK CR 48, 932 P.2d 1136; State v. Stuart, 1993 OK CR 29, 855 P.2d 1070; Phipps v. State, 1992 OK CR 32, 841 P.2d 591; Graham v. State, 1977 OK CR 1, 560 P.2d 200.

{13 However, that is not the issue in the present case, as the arrest was made by the local Bartlesville Police, not the Kansas officers. For that reason, Phipps is inapplicable.

{14 Here, the Kansas officers were conducting an investigation into stolen motorcey-cles and motors. As such, their questioning of the defendant was investigatory and not accusatory. In Escobedo v. Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1766, 12 L.Ed.2d 977 (1964), the United States Supreme Court said:

... Nothing we have said today affects the powers of the police to investigate 'an unsolved crime, ... by gathering information from witnesses and by other 'proper investigative efforts' ... We hold only that when the. process shifts from investigatory to accusatory-when its focus is on the accused and its purpose is to elicit a confession-our adversary system begins to operate, and, under the cireumstances here, the accused must be permitted to consult with his lawyer.

378 U.S. at 492, 84 S.Ct. at 1766 (internal citations omitted). See also Spano v. New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959).

1 15 While the Kansas officers were admittedly acting outside their jurisdiction by interviewing the defendant in Bartlesville, Oklahoma, there is no legal prohibition to their questioning of the defendant in a consensual encounter.

T 16 In our previous state cases, this Court has held that officers acting outside their jurisdiction act as private citizens. See also Horn v. City of Seat Pleasant Md., 57 F.Supp.2d 219, 225 (D.Md.1999) ("an officer acting beyond his jurisdiction loses his cloak of authority.") Here, the Kansas officers clearly informed the defendant they had no authority over him. Viewing the officers' actions as those of private citizens, they are perfectly legal. There is nothing ilegal about private citizens asking each other questions and asking to look around their place of business. This Court's Order states that a private citizen would not ask another citizen to sign a written consent form with a police division name on it. That is probably true, but the written consent form does not raise this situation to the accusatory level where constitutional safeguards kick in. The written consent form, just like the Miranda warning, is a "red herring" in this case which appear to have been given by the officers only out of an abundance of caution. Howeyer, neither the consent form nor the Miranda warning contributes to a coercive atmosphere where the defendant was forced to sign the consent to search. As discussed above, the consent to search was given voluntarily.

T17 Accordingly, the encounter between the Kansas officers and the defendant was consensual, and the defendant's consent to search voluntarily given. Therefore, there has not been a Fourth Amendment violation and the evidence seized in the search is admissible at trial. See U.S. v. Green, 178 F.3d 1099, 1105 (10th Cir.1999).

" 18 Based upon this analysis, I believe the descriptive term "acting as a private citizen" has been overused, and to a degree misused when analyzing the role of law enforcement in our mobile society." Its use has been unknowingly wrongly extended merely because Oklahoma has a statute relating to "arrests" by private citizens. Now is the time to recognize the distinct difference between the invéstigation stage and the prose-ecution stage in the criminal process. Every day of the week law enforcement personnel are moving across jurisdictional lines of de-mareation following leads on evidence. That is the nature of crime. Criminals do not stay in clearly marked city, county, or state boundaries. Investigating officers should be able to follow where the evidence leads. The issue is then one of due process. Did the officer follow the rules? Did he or she inform the defendant and obtain a valid, knowing, voluntary consent, or go to local law enforcement and obtain a valid search warrant? The officers in the present case did everything right. The defendant's due process rights were protected. Local authorities were informed and utilized at the appropriate time. There is no legal basis for excluding the evidence in this case.

119 I am authorized to state Judge LILE joins in this analysis and vote.

      , See 11 0.$.2001, § 34-103; K.S.A. § 22-2401a (2001).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . - The dissent claims Phipps is inapplicable to this case because the Kansas officers did not actually arrest Defendant. This fact does not make Phipps inapplicable. The issue in Phipps was the same as that presented here: Is a consent to search, obtained by a police officer acting outside bis jurisdiction under color of law, valid? Clearly in Phipps, the answer was no, and there is no reason to reach a different result here.
      The question presented to this Court concerned the validity of a consent to search obtained by police officers who were acting outside their jurisdiction. For the dissent to describe the Kansas officers' contact with Defendant as a "consensual" encounter requires one to ignore the facts which show these officers at all times acted under color of law and facts from which one can infer the Defendant believed he was dealing with police officers and not private citizens. The United States District Court did not ask this Court whether the Kansas officers could conduct a consensual search; those facts are not before us.
      Nothing in Phipps or in this decision prohibits officers from other states from conducting investigations outside their jurisdictions. However, at the point such investigation involves a search or an arrest, the law in this State protects its citizens and requires such actions be made by those with authority to conduct the same. Here, the Kansas police officers could not legally conduct the search of Defendant's business premises because they were acting under color of law when they obtained Defendant's consent to search. Because the Defendant's consent was not valid, the fruits of their searches were inadmissible.

      . Further, this case is more consistent and a natural extension of our decision in Staller. In Staller, officers arranged for a confidential informant to contact suspected drug dealers to schedule some "buy/walk" drug sales. The confidential informant contacted the appellant and agreed to buy illegal drugs from him. 932 P.2d at 1139. This type of active participation in the arranging of a controlled drug buy is different from the investigative actions of the Kansas officers in the present case. In the present case, the crime had already been committed by the time the Kansas officers arrived in Bartlesville: In Staller, the crime had yet to be committed when the officers acted out of their jurisdiction. However, we find that sequence of events did not deprive the officers of the ability to obtain information and make observations that led to probable cause necessary for an arrest warrant. Id. at 1140.


author: JERRY L. GOODMAN, Judge.

text:
    2004 OK CIV APP 54
    In re REFERENDUM PETITION NO. 0203-1, CITY OF NORMAN, Oklahoma. Fred R. Gipson, Appellant, v. Sassan Moghadam, Appellee.
    No. 99,664.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    May 25, 2004.
    Fred R. Gipson, Norman, OK, Pro Se.
    H.L. Heiple Heiple Law Offices, Inc., Norman, OK, for Appellee.
   OPINION BY

JERRY L. GOODMAN, Judge.

I 1 Fred R. Gipson appeals the trial court's August 12, 2003, judgment dismissing his referendum petition because it did not contain sufficient valid signatures. Based on the facts and applicable law, we affirm.

FACTS

T2 The Norman City Council approved a zoning amendment granting a special use permit for a mini-storage facility to be located in the city limits. Gipson, a Norman resident, opposed the decision. He filed a referendum petition to place the issue on the ballot.

[ 3 To do so, a proponent is required by 11 0.8.2001 § 15-108(B) to obtain the number of signatures of registered voters residing in the municipality equal to at least 25 percent of the votes cast at the preceding general election. Based on the preceding election's turnout, Gipson needed at least 1,940 valid signatures to put the matter on the ballot.

T4 Gipson timely submitted petitions to the City Clerk, who certified 3,289 signatures. The mini-storage facility's developer, Sassan Moghadam, filed a protest. Among other arguments, he asserted Gipson failed to collect the required number of signatures.

T5 At a hearing, the Cleveland County Election Board Secretary, who is in charge of conducting Norman municipal elections, testified that her office reviewed the signatures and determined 2,026 of those were registered voters residing in the County. She acknowledged that the Board's records did not show how many of those signatures were those of registered voters residing in the municipality, which is what the statute requires. In that regard, she acknowledged that a substantial number of registered voters live inside the County but outside the city limits of Norman. She further testified she believed the information in the Election Board's system was up to date.

T6 The trial court also heard testimony from Moghadam's office manager, who stated she had examined the individual petition signers' addresses by looking them up in the County Election Board's database, and found that some of the signatories lived in Moore or other places inside the County but outside Norman. According to a chart she prepared, which the trial court admitted into evidence, there were over 400 such examples. She admitted on cross-examination that she did not know how recent those addresses were and acknowledged the information could be outdated. She also testified the County's figures should be reduced by 11 to account for duplicate and in one case triplicate signatures.

T7 Following a hearing, the trial court dismissed the 'petition for the reason that it did not contain sufficient valid signatures. Gipson appeals.

ANALYSIS

18 Gipson makes a single argument on appeal: that the trial court erred because Moghadam failed to produce clear and convincing evidence that the number of valid signatures was not sufficient. Gipson asserts that because the County Election Board See-retary testified that 2,026 registered voters signed the petitions, and because that figure is more than the 1,940 signatures required, the trial court's decision must be reversed.

T 9 This is an incomplete representation of the evidence. What Gipson leaves out of his analysis is that the Board Secretary clearly qualified her testimony by stating that the 2,026 figure represented registered voters residing in the county, while the statute requires a certain number of registered voters residing in the municipality. Her testimony alone certainly does not show the trial court erred.

10 Beyond that, the record contains the results of Moghadam's employee's analysis. Using information from the County's database, she identified over 400 signatures of registered county voters whose addresses were outside the city of Norman. By subtracting these names from the total of 2,026 county registered voters (even without counting the few duplicate or triplicate signatures), the number of signatures was less than the required 1,940.

T11 In In re Initiative Petition No. 365, State Question No. 687, 2001 OK 98, 55 P.3d 1048, the Oklahoma Supreme Court analyzed a challenge to the numerical sufficiency of signatures on an initiative petition. As in this case, the challenge involved a comparison of the signatures on the petitions with an official electronic database: in that case, the State Election Board's Oklahoma Election Management System; in the instant case, the Cleveland County Election Board records. Though the matter there was an original action, the Court's analysis is instructive.

112 When an opponent attacks signatures appearing on a petition on the basis its signers are not registered voters, a presumption arises that the persons are registered voters. Id. at ¶ 5, 55 P.3d 1048, 1050. The opponent-here, Moghadam-bears the burden of producing sufficient competent evidence to overcome this presumption. Id. If an opponent establishes a prima facie case of non-registration by proving that a petition signer is not found in the appropriate database, then it is up to the petition's proponent-here, Gipson-to overcome this prima facie case. Id. at ¶ 22, 55 P.3d at 1053. This process of comparing the signatures with the records is a difficult one, given an opponent's strong incentives to require an exacting match. Id. at ¶ 21, 55 P.3d at 1053. Throughout this process of analysis it is the opponent's ultimate burden of proving non-registration clearly and convincingly. Id. at ¶ 23, 55 P.3d at 1053.

{13 In the instant case, Moghadam presented clear and convincing evidence that the petitions failed to contain the requisite number of signatures. That evidence showed that out of over 3,000 signatures, a total of 2,026 signatures were those of registered County voters. Out of that total, over 400 were those of voters residing outside the Norman city limits. Because 1,940 signatures of registered voters residing in the municipality were required, Moghadam's evidence established a prima facie case that the petitions did not contain sufficient valid signatures to call for a referendum.

T14 In Petition No. 365, the Supreme Court stated that a prima facie case can be overcome either specifically, by offering proof that a specific challenged voter is in fact registered; or more generally, by establishing that opponents were generally capricious, unreasonable, or inaccurate in comparing the names or addresses of the petition signers against the official database. Id. at 1 22, 55 P.3d at 1053. Gipson's only attempt to do so was by a general challenge. He suggested the possibility that those registered voters who gave non-Norman addresses to the Election Board may have moved inside the city limits at the time they signed the petitions.

{15 The problem with this argument is that it is speculative, especially given the Election Board Secretary's testimony that her records were up to date. Moreover, if it could be said that some Norman residents were incorrectly indicated by the records to be non-residents, then it could just as easily be said that some non-residents were wrongly shown to be residents. «We hold Mogha-dam established a prima facie case, which Gipson failed to overcome.

€ 16 The trial court's dismissal of Gipson's petition for the reason that the petition did not contain sufficient valid signatures is supported by clear and convincing evidence. It is therefore unnecessary to consider Mogha-dam's other arguments in support of the trial court's decision.

€ 17 AFFIRMED.

TAYLOR, P.J., and STUBBLEFIELD, J., concur. |


text:
    2004 OK CIV APP 55
    Brandy MARTIN, now Vaughan, Plaintiff/Appellant, v. John MARTIN, Defendant/Appellee.
    No. 99,292.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    June 1, 2004.
    As Corrected July 1, 2004.

      Mark A. Morrison, P.C., Durant, OK, for Plaintiff/ Appellant.
    Ronnie May, May Law Firm, McAlester, OK, for Defendant/Appellee.
   Opinion by

JERRY L. GOODMAN, Judge.

T1 Brandy Martin (Mother) appeals the trial court's April 23, 2003, order modifying custody of her minor children. Mother was divorced from John Martin (Father) and was initially granted custody of the children. Father later filed a motion to modify the decree, seeking custody of the children. After a hearing, the trial court granted the motion and changed custody to Father. Mother appeals.

FACTS

12 The parties were divorced in September 1998. The decree gave custody of the parties' two children to Mother, with Father receiving visitation rights. Mother remarried. On October 16, 2002, Father filed an application seeking temporary emergency custody of the children. He alleged that Mother's new husband was abusive to the children, and that the children needed to be removed from Mother's home and placed with Father.

1 3 The following day Father filed a motion to modify custody. He again alleged that Mother's new husband had been physically and emotionally abusive to the children, and that they were both suffering academically and the youngest child was exhibiting physical symptoms of stress. Father alleged this constituted a material, permanent change of circumstances and that the best interest of the children would be served by placing them in his custody. Mother denied the allegations.

[ 4 An evidentiary hearing was held January 10, 2008. Thereafter, the trial court entered its order stating that there had been a substantial, material, and permanent change of condition which necessitated a change of custody of the children. However, the order did not specifically identify the change of condition. The Court granted custody of the children to Father and visitation to Mother, who was also ordered to pay child support.

1 5 Mother appeals. We reverse.

STANDARD OF REVIEW

16 In a case involving a motion to modify, the moving party is required to show evidence establishing a change of condition which has a substantive effect on the best interest of the child. Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. Modification of child custody is equitable in nature and the trial court's change of custody order will be affirmed on appeal if there is evidence showing that the change in custody is in the best interests of the children due to a significant change of cireumstance which directly and adversely affects the children. Fox v. Fox, 1995 OK 87, ¶ 6, 904 P.2d 66, 69.

ANALYSIS

T7 The sole issue on appeal is the correctness of the trial court's decision changing children's custodial parent from Mother to Father. While the trial court states in its order that a substantial change of condition has occurred, the order is silent as to what specifically constituted the change of condition, or what evidence was most persuasive to the trial court in arriving at its decision. Thus, this court is asked to review the correctness of the trial court's determination that a change of condition has occurred, yet we are not told what constitutes that change of condition. In such a cireumstance, we will analyze the grounds for change of custody stated by the moving party, and review the evidence to determine if it provides support for the alleged grounds. In this case, we conclude it does not.

T8 We have reviewed the entire record presented, including the transcript of the January 10, 2008, hearing. The testimony centered on the animosity between Father and Mother. Both have since remarried, yet the animosity continues. This animosity is construed and perceived by the parties as a change of condition affecting the well-being of their children. However, it is certainly not a one-sided problem, and the post-divorce relations between Mother and Father seem to be only a continuation of the same relationship the couple had at the time of the divorcee. We find, at least as between Mother and Father, that there has been no showing of a substantial change in condition.

T9 The children are caught in the middle of these contentious parties. Without question, they are exhibiting some physiological and emotional trauma as a result of being the subject of litigation. In particular, the evidence reflects the son, age seven at time of trial, is having trouble adjusting in school and is experiencing occasional incontinence, the latter seeming to clearly indicate emotional stress. However, the record does not establish the source of the stress.

10 There was evidence that Mother and her new husband, both college students when they married, had moved several times, necessitating changing schools for the children. However, at time of trial, the evidence was that this situation was ending, because the new husband had completed his accounting degree and obtained promising employment in Texas. The couple was building a new home. Thus, the moving of the children would not be a permanent change of condition.

[ 11 Father alleged Mother's new husband was physically abusive of the children, but the evidence did not support that conclusion. At best, Father's evidence is that Mother or her new husband occasionally used corporal punishment as a last resort for discipline problems. However, Father also admitted to using corporal punishment on occasion.

{12 There is a suggestion in the record that the son may be experiencing symptoms of attention deficit hyperactive disorder. However, the evidence was that Mother had been concerned with son's problems and consulted her doctor and was referred to a psychologist. Nothing in this evidence gives any basis for change of custody.

T 13 The record reflects that at the conclusion of the testimony, the trial court indicated it would speak to each of the children in camera, although from the appellate record, it is not apparent this was done. If so, then the meeting was not transcribed. Ordinarily, in the absence of a complete record, we must presume the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496. Without examining all the evidence considered by the trial court at that hearing, we cannot conclude, as we must in order to reverse, that the trial court's decision was clearly against the weight of the evidence. In the Matter of the Estate of Fields, 1998 OK CIV APP 129, ¶ 12, 964 P.2d 955, 959.

14 However, in this case, we are inclined not to follow the general presumption because it is not definite there was such a meeting, and even if there was one, it is not apparent that any in camera discussion related in any way to the findings of the trial court. We conclude that a child custody case is of such importance that it should not be decided on conjecture regarding what evidence is absent from the record. We further conclude that a judgment totally without evi-dentiary support should not stand, particularly one without explanatory rationale giving the parents some basis for the court's conclusion. Parents have no way of determining what errors on their part may have led to the change, and a future trial court has no way of knowing if the new change of condition, which will become the new status quo, has changed yet again.

[15 In this case, there is such a lack of documented change of cireumstance that we must reverse the trial court.

16 REVERSED.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.