author: HARGRAVE, J.

text:
    2004 OK 31
    STATE of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Dochele BURNETT, Respondent.
    No. SCBD 4715.
    Supreme Court of Oklahoma.
    May 11, 2004.

      Allen J. Welch, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Complainant.
    Robert P. Hall, Jackson, Hall & Associates, Oklahoma City, OK, for Respondent.
   HARGRAVE, J.

¶ 1 The Complainant, Oklahoma Bar Association (Bar Association/General Counsel), charged the Respondent, Dochele Burnett, (Burnett) with a violation of Rules 1.1, 1.3, 1.4, 3.2, 5.5 7.1(a)(1) and 7.5(b) of the Rules of Professional Conduct and Rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S. ch. 1 app. I-A (2001).

¶ 2 The Professional Responsibility Tribunal (PRT) adopted the submitted stipulations of fact and conclusions of law as part of its findings. A review of the record reveals the stipulated facts and conclusions of law to be accurate. The stipulations reflect that Burnett has been a member of the Oklahoma Bar Association since 1984, and has not been previously disciplined. Costs of $774.89 may properly be imposed. Rules Governing Disciplinary Proceedings, Rule 6.16, 5 O.S. Ch. 1, App. l-A.(Supp.l997)

¶ 3 The conclusion of law to which the panel agreed was that the respondent’s conduct violated Rules 1.1, 1.3, 1.4, 7.1 and 7.5, Rules of Professional Conduct, 5 O.S. Ch. 1, App. 3-1 (2001), as well as rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S. ch. 1 app. I-A (2001) which, if proved, is cause for professional discipline as provided in the Rules Governing Disciplinary Proceedings, 5 O.S. Ch. 1, App. 1-A (2001). The tribunal recommended discipline of private reprimand.

FACTS

Count I

¶ 4 Burnett is a 1973 graduate of Howard University. She received her law degree from Oklahoma City University College of Law in 1982 and was admitted to practice in Oklahoma in 1984. Thereafter, Burnett practiced in Oklahoma, as an employee of, and under the supervision of others, until 1987 when she moved to California. She relocated from California to Austin, Texas in 1994 where she worked for attorney Bryant Berry whose practice was limited primarily to bankruptcy, although during the time Burnett worked for Berry he was completing some personal injury cases for another attorney who had retired. Burnett worked for Berry until 1998 when he too retired and sold his practice to Burnett. Burnett is licensed to practice only in Oklahoma and has never been admitted in either California or Texas.

¶5 In . June 1999, after she had acquired Berry’s bankruptcy practice, Burnett filed a Chapter 13 bankruptcy for Leonard and E1--len Westra in the United States Bankruptcy Court for the Western District of Texas (Austin Division). Shortly thereafter, Leonard Westra deserted his family, making Chapter 13 impracticable, so the bankruptcy was voluntarily dismissed. Even though she was delinquent in her loan payments, Ellen Westra wanted to retain her car and her residence, so she hired Burnett to file a second Chapter 13 bankruptcy for her. The voluntary Chapter 13 petition was filed in August 1999 but Westra’s Schedules of Assets and Liabilities, prepared under Burnett’s supervision, were incorrect in several material aspects.

¶ 6 The original Chapter 13 plan filed by Burnett provided that the future car payments were to be made by Westra directly to Mazda American Credit, the secured party, and that only those payments in arrears at the time of the bankruptcy filing would be paid by the trustee under the Plan. Those ear payments were not made, however, because Westra thought that the payments to Mazda American Credit were all being made by the Chapter 13-trustee under the Plan. Due to this deficiency, Mazda American Credit filed a motion to modify automatic stay so that it could repossess the vehicle. Westra accompanied Burnett at the hearing on the motion but Burnett advised Westra that she did not have to remain for the hearing. Burnett thereupon negotiated a settlement with Mazda American Credit on behalf of her client but did so without Westra’s knowledge or consent. Under the terms of the settlement, Burnett agreed to file a modified Chapter 13 Plan that provided for the payment of Mazda American ■ Credit’s secured claim. Burnett ■failed to file an amended Chapter 13 Plan and consequently, Westra’s vehicle was repossessed.

¶ 7 Westra later hired an different lawyer to represent her in the Chapter 13 bankruptcy. Through the new attorney, Westra filed a motion to examine Westra’s prior transactions with Burnett. After a hearing on April 25, 2000, the Bankruptcy Court entered a Memorandum Opinion on May 17, 2000. In that Opinion, the Judge found that Burnett “had little, if any, concern.-either for the accuracy of her work or for the fervent pursuit of the protection of the rights of her client” and that “her actions show incompetence.” The Judge also found that Burnett “appears to have a basic ignorance of bankruptcy law and procedure and an alarmingly nonchalant attitude about the plethora of mistakes she made in this case,” and that Burnett committed “rank malpractice” by not getting Westra’s consent to the settlement she reached with Mazda American Credit. As a result, the court ordered Burnett to repay the $900.00 fee paid to her by Westra and referred the matter to the grievanee/ad-missions committee of the United States District Court for the Western District of Texas.

¶8 On August 21, 2001, the admissions committee issued its final recommendations which were adopted by the Bankruptcy Court in a General Order dated September 24, 2001. Burnett’s continued ability to practice law in the Bankruptcy Court was conditioned upon her compliance with the following requirements: “[Tjaking the MPRE examination given by the State Bar of Texas on August 10, 2001 and becoming licensed to practice law by the State of Texas no later than February 10, 2002, consulting with the Law Office Management Program of the State Bar of Texas no later than November 21, 2001, taking 15 hours of continuing legal education (non self-study) by no later than November 21, 2001 and providing proof thereof within a one-month period thereafter, and other CLE requirements as stated in such recommendation:” On March 21, 2002, the Bankruptcy Court entered an order rescinding Burnett’s privilege to practice law for failure to comply with the conditions established in the August 21, 2001 order by failing to consult with the Law Office Management Program of the State Bar of Texas and by failing to become admitted to practice in the State of Texas by February 10, 2002. The United States District Court for the Western District of Texas likewise entered an order on March 26, 2002, removing Burnett’s name from the list of attorneys authorized to practice in that court.

Count II

¶ 9 While under the employ of Berry, Burnett assisted in the representation of clients in personal injury cases by negotiation settlements. Burnett, purportedly with Berry’s authorization, also signed Berry’s name on a Petition to initiate a personal injury lawsuit in the Court of Travis County, Texas. The signature block on the Petition inappropriately included Burnett’s name even though she was not and is not admitted to practice in Texas. Next to Burnett’s name was her Oklahoma Bar Number. The Grievance Committee for the State Bar of Texas, on June 17, 1997, in a proceeding involving Berry, found that he “assisted a person who is not a member of the State Bar of Texas in the performance of activity that constitutes the unauthorized practice of law.” Until sometime after June 1997, Burnett used Berry’s letterhead which included Burnett’s name but failed to reflect that she is only admitted to practice in Oklahoma. Burnett ceased using the letterhead only when her employer, Berry agreed in a proceeding against him before the Grievance Committee of the Texas State Bar to stop doing so and further agreed to a six-month suspension of his license to practice law. Burnett later agreed with the State of Texas Unauthorized Practice of Law Committee, as documented by a letter dated November 4, 1998, to cease the unauthorized practice of law.

Count III

¶ 10 Burnett failed to notify the Oklahoma Bar Association of her disbarment by the Bankruptcy Court and the United States District Court for the Western District of Texas. She also failed to report to the Oklahoma Bar Association that she had acknowledged to the Texas State Unauthorized Practice of Law Committee that she had engaged in the unauthorized practice of law and that she agreed to refrain from doing so.

¶ 11 Although we give the trial panel’s recommendations great weight, we are obligated to consider the evidence de novo and reach our own conclusions as to the discipline to be imposed. State ex rel. Oklahoma Bar Association v. Miskovsky, 1992 OK 40, 832 P.2d 814, 817. This Court, after reviewing Burnett’s testimony, considering the Stipulations submitted by the parties, and considering the arguments made by counsel, find that Burnett, did not competently represent Westra in her Chapter 13 bankruptcy case, thereby violating Rule 1.1 of the Oklahoma Rules of Professional Conduct. Next, we find that Burnett violated rule 1.3 of the Oklahoma Rules of Professional Conduct by not timely amending Westa’s Chapter 13 plan, thus not acting with reasonable diligence. Additionally, we find that Burnett violated rule 1.4 of the Oklahoma Rules of Professional Conduct, by failing to obtain her client’s consent to the settlement with Mazda American Credit and by not informing her client of the settlement.

¶ 12 We also conclude that Burnett misled the public, her clients and other attorneys by not indicating on her letterhead in the bankruptcy petition and the personal injury petition that she was only licensed in Oklahoma, thus violating Rules 7.1(a)(1) and 7.5(b) of the Oklahoma Rules of Professional Conduct.

¶ 13 Finally, we conclude that Burnett violated rule 7.7(a) of the Rules Governing Disciplinary Proceedings by failing to notify the Oklahoma Bar Association of her disbarment by the United States Bankruptcy Court and the United States District Court for the Western District of Texas, as well as her acknowledgment to the state of Texas Unauthorized Practice of Law Committee that she had engaged in the unauthorized practice of law.

¶ 14 Burnett has shown that she has not been previously disciplined by the Supreme Court of Oklahoma or, excluding the present matter, has she ever been the subject of an investigation by the Office of General Counsel. She has also incurred penalties and sanctions in federal courts and in the state of Texas. The PRT found Burnett to be well intended, that she fully cooperated in these proceedings and fully disclosed pertinent information, but that she “clearly suffers from a lack of adequate supervision and training.” We agree with these findings and conclude that the appropriate punishment be a public reprimand.

¶ 15 The Oklahoma Bar Association has also moved that costs of this proceeding be assessed against the Respondent, and the Respondent should be ordered to pay such costs, totaling $774.89 within ninety days after this opinion is final.

RESPONDENT IS PUBLICLY CENSURED AND ORDERED TO PAY THE COSTS OF THIS DISCIPLINARY PROCEEDING IN THE AMOUNT OF $774.89, WITHIN NINETY (90) DAYS FROM THE DATE THIS OPINION BECOMES FINAL.

¶ 16 ALL JUSTICES CONCUR.

      . 5 O.S.Chapter 1, App. 3-A Rule 1.1. Competence.
      A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

      . 5 O.S. Chapter 1, App. 3-A Rule 1.3. Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

      . 5 O.S.Chapter 1, App. 3-A Rule 1.4. Communication
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . 5 O.S.Chapter 1, App. 3-A Rule 7.1. Communications Concerning A Lawyer’s Services
      (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it is:
      (l) a communication which contains a material misrepresentation of fact or law, or omits information necessary to make the communication, considered as a whole, not materially misleading.

      . 5 O.S.Chapter 1, App. 3-A Rule 7.5. Firm Names And Letterheads
      (b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

      . 5 O.S.Chapter 1, App. 1-A § 7.7. Disciplinary Action in Other Jurisdictions, as Basis for Discipline.
      (a) It is the duty of a lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline.


source: Caselaw Access Project

author: EDMONDSON, J.

license: Public Domain

text:
    2004 OK 33
    In re A.N.O., a minor child. Nathaniel O’Neal and Christina O’Neal, Appellants, v. Floyd Lee Ogle, Jr. and Margaret Ann Ogle, Appellees.
    Nos. 97,980, 99,340, 99,918.
    Supreme Court of Oklahoma.
    May 18, 2004.

      Hugh V. Rineer, Leonard & Rineer, Tulsa, OK, for Appellants.
    James D. Sicking, Jr., Assistant Public Defender, Tulsa, OK, for the Minor Child.
    Luke Goodwin, Tulsa, OK, for Appellees.
   EDMONDSON, J.

¶ 1 We are asked by Nathaniel and Christina O’Neal, parents of A.N.O., to determine whether the trial court exceeded its jurisdiction when it granted visitation rights to their child’s grandparents subsequent to the termination of the grandparents’ guardianship over her. The O’Neals additionally contend that if the visitation order is not void for lack of jurisdiction, it should nonetheless be reversed as it is an unconstitutional intrusion into their family life in violation of guarantees of the federal and state constitutions. We find that the trial court was without jurisdiction to issue the visitation order, and we vacate the opinion, of the Court of Appeals and reverse the judgment of the trial court.

¶2 In related eases the O’Neals brought appeals from orders in the same trial court action entered subsequent to the filing of this appeal. Case Number 99,340 concerns an order sustaining grandparents’ “Motion to Enforce” the previously entered visitation order that was the subject of this appeal, and Case Number 99,918 challenged the trial court’s award of attorney fees in the amount of $20,000.00 against parents for resisting the grandparents’ efforts to enforce the visitation order. Pursuant to Rule 1.27(d), Oklahoma Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1, we sua sponte consolidate these appeals under the earlier case number for disposition by a single opinion.

¶ 3 We previously granted certiorari to the O’Neals, respondents/appellants, to consider the issue of the termination of the court’s jurisdiction over the subject matter of the guardianship which had been before it. The matter presents á question of law concerning the interpretation and application of statutes and is before us for de novo review.

¶ 4 The pertinent facts are these. When A.N.O. was five months old, her maternal grandparents, Floyd and Margaret Ogle, petitioners/appellees, filed a petition for guardianship of her person and estate as well as a petition seeking an emergency ex parte temporary order of guardianship based on conditions which they alleged placed A.N.O.’s physical and emotional welfare at risk of immediate harm. The trial court granted an emergency ex parte temporary order naming the Ogles the “temporary guardians” of A.N.O. The following month, the Ogles and the O’Neals appeared before the court and entered into an agreed order that named the Ogles “special guardians” of the person of A.N.O. until further order of the court, and the court issued them letters of “Special Guardianship.” The order also granted A.N.O.’s parents visitation rights and set out the terms for those visitation periods. A.N.O.’s mother and father were not married at the time of her birth on February 15, 1999; however, they were married by the time the guardianship ended.

¶ 5 In August, 2001, following five days of hearings with all parties present, the trial court determined that conditions had changed and A.N.O. should be returned to the custody of her mother and father. The order also granted .the O’Neal’s motion to terminate the Ogles’ special, or temporary, guardianship and denied the petition filed by the Ogles for guardianship which was still pending before the court. The order of the court provided: “the Court finds in favor of the Respondents and hereby denies the guardianship petition and orders the minor child returned to the Respondents ... The Petitioners’ Letters of Guardianship are hereby terminated and each is hereby discharged.”

¶ 6 The trial court encouraged the parties to enter into an agreeable visitation schedule for A.N.O.’s grandparents to see her. The parties could not agree and the court began in November.of 2001 a series of orders which compelled the O’Neals to allow visitation at specified times. The O’Neals had argued that the trial court was without jurisdiction over this issue, but the court asserted it had “continuing jurisdiction” over the issue of grandparental visitation rights with A.N.O. through the guardianship proceeding and under the provisions of 10 O.S. Supp.2000, § 5, the grandparental visitation statute. The court found § 5 gavé it the authority to impose orders for grandparents’ visits which it found to be in the child’s best interest, even if the parents objected.

¶ 7 On appeal, the O’Neals argued that when the trial court terminated the guardianship proceeding, returning the custody of their daughter to them and dismissing the guardians, its jurisdictional power and authority over their child and their family ended. They argued the court was therefore without lawful power to award visitation with A.N.O. to the Ogles, her former guardians, and that no statutory authority from any other source, including § 5, gave the court continuing jurisdiction to impose visitation against their wishes. The Ogles supported the position of the trial court and the Court of Civil Appeals upheld it. We agree with A.N.O.’s parents.

¶ 8 The procedures for the court’s appointment of a guardian and termination of that appointment are governed by the provisions of the Oklahoma Guardianship and Conservatorship Act, 30 O.S.2001, §§ 1-101, et seq., and relevant sections are set forth below. Section 1-113 concerns the appointment of a guardian and commencement of the court’s jurisdiction and provides in pertinent part:

A. A guardian of ... a person residing in this state, who is a minor ... may be appointed in all cases by the court as provided in this title.
B. After the service of notice in a proceeding seeking the appointment of a guardian or other order, in subsequent proceedings pertaining to the guardianship of a ward and until termination of the proceeding, the court in which the petition is filed has exclusive jurisdiction to determine:
1. the need for a guardian or other order ...

(Emphasis added.)

The powers of the court over the guardian are set forth in § 1-114, and the relevant portions provide:

A. In all cases the court making the appointment of a guardian has exclusive jurisdiction to control such guardian in the management and disposition of the person and property of the ward.
B. The court has jurisdiction over guardianship proceedings, and has the following powers, which must be exercised in the manner prescribed by statute, to:
1. appoint and remove guardians for minors ...
2. issue and revoke letters of guardianship;

The legal effect of letters of guardianship is established by § 1-123 as follows:

“Letters of guardianship are evidence of the transfer of the management or administration of all assets, or the part thereof specified in the letters, of a ward to the guardian. An order terminating a guardianship is evidence of transfer of the management or administration of all assets subject to the guardianship from the guardian to the ward.
The termination of a guardianship is controlled by § 4-804 which provides:
The guardian of [a] ... minor may be discharged by the court when it appears to the court, on the application of the ward or otherwise, that the guardianship is no longer necessary.

¶ 9 It is fundamental that jurisdiction is the authority by which courts take cognizance of and decide cases, and that the three elements necessary to the validity of a court order are jurisdiction of the person, jurisdiction of the subject matter and the power of the court to decide the particular matter and render the particular judgment at issue. Roth v. Union Nat. Bank of Bartlesville, 1916 OK 823, 160 P. 505. Subject matter jurisdiction is essential. It is the power and authority of a court to hear and determine causes of the kind in question. Thus, a court has the jurisdiction to try an action when it has jurisdiction of the persons and the cause is the kind of a cause triable in such court, and the power to render any rightful judgment therein. Board of Trustees of the Firemen’s Relief & Pension Fund v. Brooks, 1937 OK 245, 67 P.2d 4. Since subject matter jurisdiction concerns the competency of the court to determine the particular matter, it cannot be waived by the parties or conferred upon the court by their consent and it may be challenged at any time in the course of the proceedings. Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910. Subject matter jurisdiction is invoked by the pleadings filed with the court. State ex rel. Turpen v. A 1977 Chevrolet Pickup Truck, 1988 OK 38, 753 P.2d 1356. Where the pleadings state a case over which the jurisdiction of the court extends, jurisdiction attaches and the court has the power to hear and determine the issues involved. Flick v. Crouch, 1967 OK 131, 434 P.2d 256.

¶ 10 There is no question of the trial court’s jurisdiction to hear the' guardianship matter, to determine those issues and to enter the judgment terminating the guardianship, returning A.N.O. to the custody of her parents, and dismissing the grandparents’ pending guardianship petition. Jurisdiction was properly invoked by the pleadings, properly exercised by the court and properly concluded by the order. Pursuant to 30 O.S.2001, § 1-113 the trial court had jurisdiction over the guardianship “until termination of the proceeding.” That jurisdiction ended according to law with the finality of the court’s termination order, and the court had no power to order the O’Neals to submit to visitation against their wishes. 30 O.S.2001 § 4-804.

¶ 11 From the authority set forth above, outlining basic concepts of subject matter jurisdiction, the trial court’s finding that it had “continuing” jurisdiction over grandpa-rental visitation rights by reason of Title 10, O.S. § 5, is unsustainable. In pertinent part, the grandparental visitation statute provides:

A. 1. Pursuant to the provisions of this section, the grandparent of an unmarried minor child may seek and be granted reasonable visitation rights to the child which visitation rights may be independent of either parent if the district court deems it to be in the best interest of the child and
e. the grandparent had custody of the grandchild pursuant to Section 21.3 of this title, whether or not the grandparent had custody under a court order, and there exists a strong continuous grandparental relationship between the grandparent and the child,
i. At any other time and for such other reason the court deems it to be in the best interests of the child.
E.- The district courts are vested with jurisdiction to issue orders granting grand-parental visitation rights and enforce such visitation rights, upon filing of a verified application for such visitation rights or enforcement thereof. Notice as ordered by the court shall be given to the person or parent having custody of the child and the venue of such action shall be in the county of the residence of such person or parent. (Emphasis added.)

¶ 12 There was no action brought pursuant to the provisions of 10 O.S. § 5(E)(1) and the court was therefore not competent to pass on those statutory issues. The Ogles had neither filed a verified application nor given notice as required by the statute. The subject matter jurisdiction of the court had been not invoked by proper pleadings to hear and determine a cause under § 5, and the trial court had no jurisdiction under that statute of either the subject matter or the parties to hear the cause pm-ported to be subject to those provisions. These efforts by grandparents to obtain visitation should have been dismissed by the trial court for lack of subject matter jurisdiction.

¶ 13 The O’Neals also argue that the trial court’s order imposing visitation violated their constitutional rights. In support of their position, they cite In re Herbst, 1998 OK 100, 971 P.2d 395 and Neal v. Lee, 2000 OK 90, 14 P.3d 547. In Herbst, a grandfather sought to visit his grandchild against the wishes of the parents. He relied on 10 O.S.Supp.1996 Section 5(A)(1), an earlier version of the statute before us, asserting visitation was in the child’s best interest. This Court held the statute to be an unconstitutional intrusion into family life, as it required no threshold showing of harm or threat of harm before bringing the issue of a child’s best interests within the province of the court. In Neal v. Lee, supra, this Court followed the teaching of Herbst, and terminated grandparental visitation rights that were granted under 10 O.S. § 5 without a showing that the children would suffer harm without court ordered visitation. Our holding in Neal relied in part, as do the O’Neals, on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49(2000), where the United States Supreme Court addressed the issue of court-ordered grandparental visitation and held that the Fourteenth Amendment protects a parent’s right to raise her child without undue governmental interference and that a fit parent is accorded a presumption that she acts in the child’s best interest.

¶ 14 Since we view the matter of subject matter jurisdiction determinative of this appeal, we find it unnecessary to decide the O’Neals’ due process challenges to § 5 and the trial court’s order of visitation. “Courts, of course, will pass upon the constitutionality of a statute only when it is necessary to a determination on the merits.” Schwartz v. Diehl, 1997 OK 115, 568 P.2d 280, 283.

¶ 15 The l-ulings of the trial court in the consolidated cases must also be reversed as they were, likewise rendered without jurisdiction. In light of this resolution of these appeals we find it unnecessary to address the merits of the arguments presented by the parties in those matters.

¶ 16 THE OPINION OF THE COURT OF APPEALS IN 97,980 IS VACATED AND THE JUDGMENT OF THE TRIAL COURT IS REVERSED; IN THE APPEALS CONSOLIDATED FOR DECISION, 99,340 AND 99,918, THE JUDGMENTS ARE REVERSED.

¶ 17 WATT, C. J., HODGES, LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, JJ., concur.

¶ 18 OPALA, V.C.J., dissents.

      . The pertinent provisions of the Rule state:
      (d) Consolidated and Companion Appeals.

      The appellate court has the discretion sua sponte, or upon motion of a party, to consider any appeals including one or more appeals governed by Rule 1.36 as companion or consolidated appeals.


author: HODGES, J.

text:
    2004 OK 34
    Jennifer L. HENRY, Plaintiff/Appellant, v. Arnold J. SCHMIDT, Defendant/Appellee.
    No. 97,705.
    Supreme Court of Oklahoma.
    May 18, 2004.

      James R. Elder, Tulsa, Oklahoma, for the Appellant.
    Patti J. Palmer & Lamirand, Pawhuska, Oklahoma, for the Appellee.

      . Okla. Stat. tit. 21, §§ 565-67 (2001).

   HODGES, J.

I. ISSUE

¶ 1 The issue before this Court is whether a sentence and a fine can be imposed for indirect contempt without allowing the accused to purge the sentence. We find the trial court was within its statutory authority to impose a sentence and fine for indirect contempt. However, the trial court erred in using a clear-and-convincing evidence standard rather than beyond a reasonable doubt and in not affording the defendant her right to a jury trial.

II. FACTS

¶ 2 In the underlying proceeding to establish paternity, the court adjudicated Arnold Schmidt to be the father of his and Jennifer Henry’s child (the child), awarded custody to Henry, and awarded visitation to Schmidt. Later Schmidt filed a motion to modify custody. A trial was set for April of 2001. After taking testimony for three days, the court continued the trial until 9:30 a.m. on May 15, 2001. When the parties appeared before the court on May 15, 2001, Henry requested a continuance. She requested that she be allowed to attend a ceremony at which the child was to receive an award. After Henry promised that she would return, the judge continued the trial until 1:00 p.m. About 12:45, Henry called the judge’s bailiff stating that she had car problems between Hominy and Wynona and that she would be in court as soon as her car cooled. She said that she had spoken to a Wynona police officer about the car problems.

¶ 3 Schmidt filed a motion for contempt against Henry. In the motion, Schmidt asked that Henry be assessed attorney fees, that she be fined, and that the court impose a term of imprisonment. A hearing was held on the motion for contempt at which both Schmidt and Henry appeared.

¶4 Mr. Janeway, Henry’s employer, testified that, on May 15, Henry returned to work, went to lunch with customers, and was at work all afternoon. Mr. Teal, the Wynona officer on duty, testified that he was the only officer on duty, that he patrolled the highway between Hominy and Wynona, that he did not remember assisting anyone with car problems, that no records indicated that he had assisted anyone, and that he did not recognize Henry. Schmidt’s attorney could not find Henry when she traveled the road between Hominy and Wynona looking for her.

¶ 5 On May 16, the day that the trial was scheduled to reconvene, Henry’s family called to say that she was ill. A doctor’s office faxed the judge a statement that Henry could return to work on May 18, 2001. On May 18, 2001, Henry was served with notice that the trial was reset for May 24th and May 25th, 2001.

¶ 6 Schmidt hired private investigators to observe Henry’s activities on May 23rd through May 25th. The investigators testified that on May 24th, Henry went to several stores where she shopped. After shopping at the grocery store, Henry loaded the groceries into the trunk of the car. Later in the day, Henry, her husband, and the child went to the home of Henry’s father and then to a motor home at Walnut Creek State Park.

¶ 7 On the afternoon of May 25th, Henry and the child returned to the camp site by boat. Henry retrieved a large bag of charcoal from under the motor home. The investigators’ pictures of Henry confirm these activities. Even though Henry continued to maintain that she was ill on May 24th and 25th and that she was confined to bed for most of the time, her testimony about her activities was conflicting.

¶ 8 The court took judicial notice that Henry had failed to appear in court for previous hearings. Bench warrants were issued on several occasions because Henry had failed to appear in court. Further, Henry admitted that she failed to appear in court in a Tulsa County felony ease.

¶ 9 The trial court found by clear-and-convincing evidence that Henry was guilty of two counts of contempt, ordered her to pay a $500 for each count, ordered her to serve 15 days in the Osage County Jail, and ordered her to reimburse Schmidt $3,000 in attorney fees. The Court of Civil Appeals affirmed. This Court granted certiorari.

III. ANALYSIS

¶ 10 The only issue preserved for this Court’s review is whether the trial court erred in assessing a fine and ordering Henry to serve 30 days in the Osage County jail. Henry argues that she should have been allowed to purge the contempt, but since purge was impossible at the time of the contempt order, incarceration was unauthorized. Henry argues for a dichotomy equating criminal contempt with direct contempt and civil contempt with indirect contempt. A dichotomy which is inconsistent with Oklahoma’s statutory scheme.

¶ 11 Contempt as civil and criminal was a concept of the common law distinguished by procedural differences. Oklahoma has abolished all common law forms of contempt. In Oklahoma, contempt is governed by its constitution and statutes, in which the legislature did not adopt the common law distinction between civil and criminal contempt. Rather, contempt proceedings are sui generis. Oklahoma’s constitution dictates that the legislature - is to pass laws defining contempt and regulating the proceedings and punishments. Constitutionally, a person accused of contempt must be given an opportunity to be heard.

¶ 12 The legislature divided contempt into direct and indirect. Direct contempt is an act committed in the presence of the court. Indirect contempt “is the willful disobedience of any process or order lawfully issued or made by [the] court....” Because Henry refused to appear in court as ordered, her acts were indirect contempts.

¶ 13 The punishment for indirect contempt may be remedial to coerce the defendant’s behavior, or it may be penal to punish the defendant for disobedient or disorderly behavior. The legislature has provided for a fine and imprisonment as punishment for both direct contempt and indirect contempt. If the imprisonment is for a definite period of time, its purpose is penal and cannot be shortened by compliance or by a promise to comply with a court order. If the disobedience is a completed act, then the imprisonment must be penal rather than coercive. In contrast, if the purpose is to coerce the defendant to comply with a court order, purge may be properly allowed and sometimes statutorily required. The statutes do not make a distinction between penal and coercive punishment based on the style of the case or who initiates the proceedings.

¶ 14 In the present case, the trial court ordered Henry imprisoned for 30 days total. The imprisonment was punitive with no right to purge and was within the trial court’s statutory authority as was the fine.

¶ 15 Henry argues that she did not have timely notice that she might be imprisoned. This is simply not true. The application for contempt prays that Henry “be adjudged guilty of indirect contempt, and punished by fine or imprisonment, and [Schmidt] be awarded his reasonable attorney’s fee and costs, and all other and further relief to which he may be entitled....”

¶ 16 Henry relies primarily on Morgan v. National Bank of Commerce of Shawnee. Since this Court reached its decision in Morgan, Oklahoma’s contempt jurisprudence has evolved to better reflect its statutory scheme. The civil and criminal dichotomy articulated in Morgan is not a correct statement of the statutory law but reflects the remains of the common-law notion of contempt proceedings. To the extent that Morgan is inconsistent with this opinion, it is overruled.

¶ 17 In Board of Governors of Registered Dentists of Oklahoma v. Cryan, this Court addressed a similar issue. This Court rejected the claim that “the court may only act remedially in an indirect contempt situation.” In Cryan, the legislature authorized the imposition of a penal fine and term of imprisonment for indirect contempt for a person guilty of violating an injunction prohibiting the unlicensed practice of dentistry. Similarly, the legislature has authorized the court to impose a fíne and term of imprisonment for indirect contempt for wilfully disobeying a court’s orders. This punitive measure is not compromised by an award of attorney fees or other sanctions.

¶ 18 Even though a penal sanction may be imposed for indirect contempt, it may not be imposed absent federal constitutional protections. In Hicks v. Feiock, a parent failed to make court ordered child support payments. He was sentenced to 25 days suspended sentence and placed on probation. He was also ordered to make payments on the arrearage. The trial court’s order was unclear whether satisfaction of the arrearage would purge the sentence. Statutorily the state placed an element of the offense, the ability to make the required child support payments, on the parent. The United States Supreme Court held if the payment of the arrearage purged the sentence, then the statute was constitutionally valid and the constitutional protections attaching to criminal protections did not apply. However, if the payments did not purge the sentence, (1) the proceeding was penal, (2) federal constitutional protections attached, and (3) the state was constitutionally required to show beyond a reasonable doubt the parent’s ability to make the required payments.

¶ 19 Federal constitutional protections attaching to an indirect contempt proceeding wherein penal sanctions are imposed include the right to a jury trial and proof of the offense beyond a reasonable doubt. In an indirect contempt proceeding with the imposition of penal sanctions, a defendant may waive his constitutional right to a jury trial only upon “a clear showing that such waiver was competently, knowingly and intelligently given.” “A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver.”

¶ 20 In the present case, Henry was not afforded the required constitutional protections before penal sanctions were imposed. There is no showing of a valid waiver of Henry’s fundamental right to a jury trial. Further, the trial court based its decision on a clear-and-convincing evidence standard. The trial court was authorized to impose remedial or coercive sanctions with the right to purge based on a clear-and-convincing standard. Because penal sanctions were imposed, the burden of persuasion standard was proof beyond a reasonable doubt.

IV. CONCLUSION

¶ 21 We hold when a trial court imposes a penal sanction in an indirect contempt proceeding, the defendant is entitled to the constitutional protections afforded in criminal proceedings. This holding does not apply to indirect contempt proceedings wherein only remedial or coercive sanctions are imposed and where the evidentiary burden of persuasion remains clear and convincing. This matter is remanded to the trial court with instructions to afford Henry a jury trial and to find proof beyond a reasonable doubt before penal sanctions are imposed. The Court of Civil Appeals’ opinion is vacated to the extent that it addresses the correctness of imposing a fine and of a term of imprisonment. Because the issue of the attorney fees addressed by the Court of Civil Appeals were not raised in the petition for certiorari, the remainder of the Court of Civil Appeals’ opinion is left undisturbed.

COURT OF CIVIL APPEALS’ OPINION VACATED IN PART AND LEFT UNDISTURBED IN PART; TRIAL COURT’S JUDGMENT REVERSED; CAUSE REMANDED.

¶ 22 WATT, C.J., LAVENDER, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER, EDMONDSON, JJ., concur.

¶ 23 OPALA, V.C.J., concurs in result.

      . In this context, to purge means to clear a contempt. Black's Law Dictionary 1111 (5th ed.1979).

      . Harber v. Shaffer, 1988 OK 45, ¶ 2, 755 P.2d 640, 643-44 (1988) (Opala, J., dissenting); Ronald L. Goldfarb, The Contempt Power 49 (1963); see Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444-45, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

      . Watson v. State ex rel. Michael, 1989 OK 116, ¶ 5, 777 P.2d 945, 946-47.

      . Id.; Olda. Const. art. 2, § 25, Okla. Stat. tit. 21, §§ 565-67 (2001).

      . Board of Governors of Registered Dentists of Oklahoma v. Cryan, 1981 OK 52, ¶ 7, 638 P.2d 437, 438.

      . Okla. Const. art. 2, § 25. Oklahoma's constitution does not prohibit a punitive sentence for indirect contempt. Cryan, 1981 OK 52 at ¶ 7, 638 P.2d at 438-39.

      . Okla. Const. art. 2, § 25.

      . Okla. Stat. tit. 21, § 565 (2001).

      . Id.

      . Id.

      . Hides v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Goldfarb, supra note 1, at 56-58.

      . Okla. Stat. tit. 21, § 566 (2001).

      . Gompers, 221 U.S. at 442-43, 31 S.Ct. 492.

      . Id.; Goldfarb, supra note 1, at 57.

      . Okla. Stat. tit. 21, § 566(B)(1) (2001) (requiring the court to set a purge fee in cases "of indirect contempt for the failure to comply with an order for child support, other support, visitation, and other orders regarding minor children”).

      . See Okla. Stat. tit. 21, §§ 565-67 (2001).

      . Id. at § 566.

      . 1923 OK 240, 217 P.388.

      . 1981 OK 52, 638 P.2d 437.

      . Id. at 1981 OK 52, ¶ 7, 638 P.2d at 438-39.

      . Okla. Stat. tit. 21, §§ 565-67 (2001).

      . Gibbs v. Easa, 1998 OK 55, ¶¶ 12-13, 998 P.2d 583, 586-87. Henry's petition for certiorari did not raise the issue of whether attorney fees should have been awarded. Thus, the issue is not addressed here, and the part of the Court of Civil Appeals’ opinion addressing the issue is left intact.

      . Hicks, 485 U.S. at 632, 108 S.Ct. 1423.

      . Id. at 624, 108 S.Ct. 1423

      . Id. at 639, 108 S.Ct. 1423.

      . Id.

      . Id.

      . Id. at 637, 108 S.Ct. 1423.

      . Id. at 637-38, 108 S.Ct. 1423.

      . Id. at 637-38, 108 S.Ct. 1423.

      . Okla. Const. art. 2, § 25; Okla. Stat. tit. 21, 567 (2001).

      . Hicks, 485 U.S. at 632, 108 S.Ct. 1423.

      . Valega v. City of Oklahoma City, 1988 OK CR 101, 755 P.2d 118, § 5, 755 P.2d 118.

      . Id.; Taylor v. Illinois, 484 U.S. 400, 418 n. 24, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).

      . Hides, 485 U.S. at 632, 108 S.Ct. 849. Article 2, section 7 of the Oklahoma’s constitution provides:
      No person shall be deprived of life, liberty, or property, without due process of law.
      Due process protections encompassed within article 2, section 7 of Oklahoma's constitution are coextensive with those of its federal counterpart. Presley v. Board or County Comm’rs, 1999 OK 45, ¶ 8, 981 P.2d 309, 312. Therefore, in addition to article 2, section 25 of Oklahoma's constitution, article 2, section 7 provides a bona fide, separate, adequate, and independent ground for this Court’s decision. See Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

      . All defendants in indirect contempt proceedings have a statutory right to be tried by a jury. Okla. Stat. tit. 21, § 567 (2001).


author: KEITH RAPP, Judge. REIF, P.J.,

text:
    2004 OK CIV APP 48
    STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellant, v. CHELSEA BUTANE COMPANY, an Oklahoma Corporation; and the Mayes County Treasurer, Defendants/Appellees.
    No. 99,144.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 16, 2004.
    Certiorari Denied May 17, 2004.

      Barry K. Roberts, Norman, OK, for Plaintiff/Appellant.
    K. Ellis Ritchie, Pryor, OK, for Defendants/Appellees.
   Opinion by

KEITH RAPP, Judge.

¶ 1 The trial court plaintiff, State of OMa-homa ex rel. Department of Transportation (ODOT), appeals the trial court decision awarding attorney fees and costs to the trial court defendant, Chelsea Butane Company (Chelsea), for the “in fee” condemnation portion of this action after a trial court determination that ODOT had abandoned this action.

BACKGROUND

¶ 2 In January 1996, ODOT filed a condemnation petition against Chelsea seeMng to condemn a ten-foot wide fee simple interest in Chelsea’s property for use in connection with road construction. Commissioners were appointed and rendered their report in March 1996, determining a fair compensation to be $4,000.00, which ODOT paid into court in April 1996. ODOT took possession of the tract to build its road project. Chelsea demanded a jury, but did not withdraw the payment.

¶3 ODOT filed an amended petition in September 1997, to change the nature of the taking from that of a fee to an easement, but still including the entire property originally described. At that time, ODOT did not ask for a new Commissioners’ report. Chelsea requested an amended Commissioners’ report by motion filed December 28, 1998. On June 15, 2001, ODOT requested an amended Commissioners’ report. A new report was issued in September 2001, reflecting fair compensation for the easement and work area to be $93,300.00. ODOT, having previously paid the $4,000.00 into court, paid the balance into court, and demanded a jury trial on its exception to the new report. Chelsea then withdrew the entire sum without objection.

¶ 4 On December 28, 2001, Chelsea moved for its attorney fees and costs incurred on the ground that it had incurred these costs in reliance upon, and in defense of, the original fee taking and the original Commissioners’ report. Chelsea argued that ODOT had abandoned the original proceedings by amending its petition, having a new Commissioners’ report, and payment of the compensation into court. The trial court, after a hearing, assessed fees and costs totaling $24,464.85, by order of August 9, 2002. ODOT then sought, without success, extraordinary relief from the Supreme Court. The Supreme Court denied ODOT’s application to assume original jurisdiction on October 29, 2002.

¶ 5 On March 25, 2003, Chelsea filed a motion to clarify the attorney fee order and to reconsider the order permitting an amendment to the Commissioners’ report. The trial court, on May 8, 2003, issued a lengthy ruling holding that ODOT had abandoned its previous condemnation of the fee simple and confirmed the attorney fee award for the fee portion of the action. The trial court reasoned that when ODOT completed the change from an “in fee” taking to an easement taking, ODOT had abandoned the original taking. The trial court held the abandonment was completed upon ODOT’s payment of the money recommended by the Commissioners on their easement report. The trial court found that the date of completion of the change corresponded to the date, November 21, 2001, that ODOT deposited the money pursuant to the new Commissioners’ report and that ODOT had taken possession previously under the original proceedings. Fees were awarded under 27 O.S.2001, § 11(2). ODOT appeals.

¶ 6 ODOT here challenges only the authority of the trial court to consider and award fees under the facts of the case in two contexts:

First, ODOT argues that it had not abandoned the “in fee” eminent domain proceeding.
Second, ODOT argues that the trial court has effectively awarded an interim fee when there is no law permitting such an award.

¶ 7 Some of the facts presented by the parties are disputed, such as whether ODOT had conceded Chelsea’s right to fees and costs at one point. During the hearing on the ODOT motion for a new Commissioners’ report, ODOT’s counsel appears to have conceded its responsibility for fees and costs incurred in reliance on the prior report. However, ODOT’s Reply Brief here argues that ODOT’s concession was for the award of interim fees and that ODOT intended to wait until the conclusion of the matter because of its position that no abandonment has taken place.

■ STANDARD OF REVIEW

¶ 8 The issue here is whether the undisputed facts and facts of record support the legal conclusion that ODOT has abandoned the condemnation proceeding. ODOT concedes that the statute authorizes fees and costs in such cases. Moreover, whether a party has a right to recover attorney fees presents a question of law. Hawzipta v. Ind. School Dist. No. I — 004 of Noble Co., 2000 OK CIV APP 113, ¶ 26, 13 P.3d 98, 103. Therefore, the trial court’s decision is reviewed as a decision of law. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1.

ANALYSIS AND REVIEW

¶ 9 The issue before this Court, as both parties acknowledge, is whether ODOT has abandoned the original proceeding by virtue of its amended petition that changed the nature of the taking from that of an “in fee” taking to an easement, together with obtaining the new Commissioners’ report in the easement proceeding. No basis, other than abandonment, has been presented as authority for the attorney fee award.

¶ 10 The abandonment, if it occurred, triggers Chelsea’s right to the fees and costs. 27 O.S.2001, § 11(2). The trial court decides whether an abandonment has occurred. City of Ardmore v. Donham, 1958 OK 171, ¶ 9, 328 P.2d 438, 440. A mere dismissal is not equivalent to an abandonment. Id. The facts on which the trial court relied to find abandonment do not involve an unequivocal relinquishment or discontinuance of the eminent domain proceedings by ODOT. ODOT at all times exercised dominion, control and possession of the subject property.

V11 For example, abandonment clearly existed when the condemnor decided not to go forward with the project and dismissed the case in Atherton v. State Conservation Commission, 203 N.W.2d 620 (Iowa 1973). In Department of Transportation v. Northern Trust Co., 59 Ill.App.3d 1053, 17 Ill.Dec. 287, 376 N.E.2d 286 (1978), the department filed a complaint seeking to condemn 312.5 square feet of landowner’s property. After negotiations, the public improvement was redesigned and the complaint was amended to take only 50 square feet of property which would not substantially interfere with the landowner’s use of the residue. The court held that the Department was responsible for the landowner’s attorney fees and costs under the Illinois reimbursement statute because the taking of less than l/6th of the area originally sought resulted in little or no damages to the remainder and was tantamount to filing a new action and abandoning the old. The case of Department of Public Works & Bldgs. v. Lanter, 15 Ill.2d 33, 153 N.E.2d 552 (1958), involved the filing of an amended petition to condemn different property and rights, which the Court held constituted an abandonment. In City of Hammond v. Marina Entertainment Complex, Inc., 681 N.E.2d 1139, 1142-43 (Ind.Ct.App.1997), the City’s refiling of the eminent domain proceeding constituted “abandonment” of original proceeding, and therefore, landowners were entitled to attorney fees under the Indiana Relocation Assistance Act. In the second proceeding, City of Hammond requested title to less than 3/10ths of one percent of land requested in the original proceeding and dropped one land owner as party, so the legal services performed for landowners in the second proceeding were substantially different from those performed in the original proceeding and the second proceeding sought a new and different course through the landowners’ property.

¶ 12 However, on the other hand, abandonment was found not to have occurred in Pacific Telephone and Telegraph Co. v. Monolith Portland Cement Co., 234 Cal.App.2d 352, 44 Cal.Rptr. 410 (1965). There, the condemnor amended its petition to take a lesser amount of property and for a diminished use. The court ruled that abandonment was a fact issue and that the condem-nor was entitled to a presumption against abandonment. The court determined that the amended petition did not evidence an intent to relinquish or abandon the eminent domain proceeding.

¶ 13 In Oklahoma, a condemnor may dismiss without being required to pay the Commissioners’ award if the landowner’s possessory rights are not disturbed. Eberle v. State, 1963 OK 224, 385 P.2d 868; Board of Commissioners of Pontotoc County v. Rayburn, 1943 OK 233, 138 P.2d 820. In Oklahoma Turnpike Authority v. Dye, 1953 OK 109, 256 P.2d 438, the condemnor, OTA, did not pay the Commissioners’ award into court but tried to dismiss and the trial court refused to permit it without payment of the compensation. OTA argued on appeal that it would not use the land and had abandoned the proceedings, and that it had the right to do so. The Supreme Court agreed, holding that OTA did not have to pay the compensation for the reason that the landowner’s pos-sessory rights had not been disturbed. Oklahoma Turnpike Authority, syl. 2. The issue of attorney fees was not presented, but the Court’s rationale clearly established that a dismissal was an abandonment under the facts, albeit without financial consequences, as the OTA had no apparent intent to pursue the taking. Oklahoma Turnpike Authority and other similar cases require that the con-demnee’s possession be materially disturbed, as was here done by ODOT, before compensation is considered due from the condemnor.

¶ 14 In State ex rel. Dept. of Highways v. Waters, 1962 OK 220, 376 P.2d 288, a filing of a motion to dismiss did not amount to abandonment because the condemnor took possession of the land for the same purpose as the condemnation alleged. City of Ardmore v. Donham, 1958 OK 171, 328 P.2d 438, extended the ruling of Waters to the situation where the property described in the petition and the subject of the Commissioners’ report, was an entirely different tract than the land actually taken. The Court ruled that this does not necessarily mean that there was, in fact, an abandonment, considering that the land taken was still that of the defendant and was in close proximity to the property described in the petition. However, the facts further show that the condemnee’s property rights had not been disturbed.

¶ 15 ODOT argues here that it not only did not abandon the proceedings, but also that it could not do so because it took possession of Chelsea’s property in the “in fee” proceedings. ODOT relies primarily on language in Eberle indicating that taking possession precludes abandonment. Eberle, 1963 OK 224 at ¶ 9, 385 P.2d at 870-71. However, the facts in Eberle show that the case was dismissed by the condemnor and thus abandoned, so the real concern there was whether the condemnee’s property rights were disturbed. The context of the Court’s language in Eberle demonstrates that abandonment after possession cannot occur without financial consequences such as payment of the compensation for the taking.

¶ 16 Based upon the foregoing authorities, this Court finds and holds that the resolution of the question of whether a con-demnor has abandoned the condemnation, and thus incurred liability for fees and costs, must involve the consideration of a balancing test due to competing policy requirements. The financial consequences are present to prevent abuse of the power of eminent domain and to insure that the condemnee is made whole when the eminent domain power is exercised. See Department of Public Works & Bldgs. v. Lanter, 15 Ill.2d 33, 153 N.E.2d 552, 555 (1958); City of Inglewood v. O.T. Johnson Corp., 113 Cal.App.2d 587, 248 P.2d 536 (1952). On the other hand, the requirement to permit flexibility on the part of the condemnor seeking to use property for a public purpose, coupled with the general liberal policy concerning amendments and dismissals in litigation matters, militate against a finding of abandonment with liability in every case. Among the significant factors examined by the courts are: (1) whether the case was dismissed voluntarily; (2) the passage of time or how long the case has been pending; (3) changes in the quantum or description of the property taken; and, (4) the motive and reasonableness of the con-demnor’s action in amending the petition.

¶ 17 In the case under review, the relevant facts of record are:

(1) The case was not dismissed, but continues, and the project and the need for the use of the property remained unchanged;
(2) The Chelsea property was in fact taken by ODOT prior to its amendment, that is, Chelsea’s possessory rights were disturbed;
(3) The case was pending for a lengthy period of time before the amendment was filed; and
(4) The amendment does not materially change the quantum of property taken but does change the nature of the taking from an “in fee” to an easement.

¶ 18 What is missing here is the motive or intent of ODOT in making the amendment. The ease had been on file for a long time and it appears that the road was built utilizing Chelsea’s property. Indications in the record are that all parties believed that the original Commissioners’ report suffered because of faulty instructions of some sort. Moreover, a reduction of the taking to an easement would intuitively indicate a lesser cost to ODOT than a fee taking, but the unstated possibility is that ODOT is here merely disguising a fee taking as an easement taking.

¶ 19 Therefore, this Court holds that a necessary determination, under the circumstances shown by the record, involves ODOT’s motive. This Court may not make that determination as a matter of first impression. If there is a reasonable, rational purpose for reducing the taking to an easement that is consistent with the actual use being made of the land taken, then, under the facts here and the foregoing authorities, ODOT has not abandoned the proceedings. On the other hand, if ODOT has merely disguised a fee taking as an easement, such would, under the facts here, be an abuse of the power of eminent domain and ODOT would be held to have abandoned its original proceedings, thereby incurring the liability imposed.

¶ 20 When necessary dispositions are absent, the case must be remanded with instructions that they be determined by the trial court. A-Plus Janitorial & Carpet Cleaning v. The Employers’ Workers’ Compensation Association, 1997 OK 37, ¶ 25, 936 P.2d 916, 928. Therefore, the decision of the trial court awarding fees and costs is reversed and remanded for further proceedings in accord with the views expressed with the clear understanding that this decision in no way determines either the correctness or reasonableness of fees awarded.

¶ 21 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, C.J., concurs, and REIF, P.J., dissents.

REIF, P.J.,

dissenting.

¶ 1 I would hold that there was no abandonment and remand for trial on the issue of damages/compensation. Whether the taking was in fee or an easement simply goes to the issue of compensation.

      . Statements in the proceedings indicate that both sides believed that this Commissioners’ report erred because of faulty instructions.

      . At the hearing on this request, ODOT’s counsel discussed the case history and advised that the road construction was then complete.

      . 27 0.S.2001, § 11 provides:
      Where a condemnation proceeding is instituted by any person, agency or other entity to acquire real property for use as provided in Section 9 of this title and
      1. The final judgment is that the real property cannot be acquired by condemnation;
      2. The proceeding is abandoned; or
      3.If the award of the juiy exceeds the award of the court-appointed commissioners by at least ten percent (10%), the owner of any right, title or interest in such real property may be paid such sum as in the opinion of the court will reimburse such owner for his reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings. Such determination by the court shall be appealable to the Supreme Court in the same manner as any other final order. The final award of such sums will be paid by the person, agency or other entity which sought to condemn the property.
      The parties agree that only subsection 2 is involved here.

      . Omitted from ODOT’s concession is consideration of whether ODOT would still deem itself responsible if the new award by a jury did not exceed the new'Commissioners' report sufficiently so as to authorize fees for Chelsea.

      . Chelsea makes no claim that fees are available here as a sanction nor does Chelsea dispute the general principle that there must be a contractual or statutory basis for the award of fees. In addition, omitted from consideration here are those cases where the act of abandonment is clear, such as by dismissal after deciding not to use the property. See Atherton v. State Conservation Commission, 203 N.W.2d 620 (Iowa 1973). Also excluded from consideration are cases from jurisdictions where the statute defines abandonment. See City of Silverton v. Porter, 28 Or.App. 415, 559 P.2d 1297 n. 3 (1977).

      . In City of Hammond, the Court also found an alternative ground for awarding fees under the Indiana rule allowing conditions to be imposed for dismissals of litigation. In addition, although the action involved the state's Relocation and Assistance Act, the statutory language and legal consequences are the same as involved here under Oklahoma's eminent domain law.


author: LARRY JOPLIN, Judge.

text:
    2004 OK CIV APP 32
    Barbara L. MATHIS, Plaintiff/Appellant, v. Billy J. MATHIS, Defendant/Appellee.
    No. 98,154.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    March 17, 2004.
    William E. Liebel, Oklahoma City, OK, for Appellant.
    Allan Campbell, Kirk & Chaney, Oklahoma City, OK, for Appellee.
   LARRY JOPLIN, Judge.

¶ 1 PlaintiffiAppellant Barbara L. Mathis (Wife or Ex-Wife) seeks review of the trial court’s order denying her application to continue support alimony after her marriage to Dan Bales (Husband). In this proceeding, Wife asserts the trial court erred as a matter of both fact and law, and abused its discretion in denying her continued support alimony from Defendant/Appellee Billy J. Mathis (Ex-Husband).

¶ 2 After a twenty-two year marriage, the parties divorced in the fall of 2001. Husband was ordered to pay Wife gross support alimony of $1,244,446.00 over ten years on terms that netted Wife after taxes the total sum of $780,000.00 to be paid: $10,000.00 net after tax per month for twenty-four (24) months; $7,500.00 net after tax per month for the following twenty-four (24) months; and, $5,000.00 net after tax per month for the following seventy-two (72) months. The decree of divorce also provided for termination of Wife’s support upon her remarriage or death of either party.

¶ 3 On March 30, 2002, Wife remarried. Within ninety (90) days of her remarriage, Wife applied for a continuation of support alimony pursuant to 43 O.S. § 134(B).

¶ 4 At the hearing on the merits covering parts of two days, the parties stipulated that the income and expenses of both Wife and Ex-Husband were not materially different than what they were at the time of the divorce only a few months before. Wife introduced evidence that Ex-Husband realized after-tax monthly income of $225,349.00. The evidence also showed that prior to the marriage, Wife’s new Husband had voluntarily left the banking business after twenty-eight (28)- years, a business in which he had earned over $100,000.00 per year plus bonuses, and accumulated an estate with a net worth exceeding $600,000.00. The evidence also showed that Husband’s current income — from his employment as a full-time fitness instructor and part-time business consultant — was insufficient to contribute to Wife’s necessary living expenses. Bales testified he suffered no mental or physical disability which would prevent, him from working in any capacity he chose.

¶ 5 Upon consideration of the stipulations,’ evidence, argument and briefs of the parties, the trial court held Wife’s support alimony terminated upon her remarriage because her new Husband “is capable of earning a living and supporting [her].” In this appeal, Wife asserts the stipulations and uncontroverted evidence demonstrated her continued - need for some support from Ex-Husband,- and, considering Ex-Husband’s monthly income, the circumstances did not render payment of the continued support inequitable.

¶ 6 Before 1965, alimony judgments in Oklahoma were considered final and not modifiable. See, e.g., Gilcrease v. Gilcrease, 1939 OK 532, ¶ 0, 98 P.2d 906. The reason for this finality was because the award of support alimony was a “matter of sound judicial discretion to be exercised in accord with established principles and in view of the circumstances of each particular case” “at the time of the divorce.” Bishop v. Bishop, 1944 OK 180, ¶ 5, 148 P.2d 472, 474; Bowen v. Bowen, 1938 OK 105, ¶ 13, 76 P.2d 900, 902. In awarding alimony, the courts looked to various factors, particularly, need and ability to pay, “as the court may deem just and equitable.” 12 O.S.1961 § 1278. Branson v. Branson, 1942 OK 77, ¶ 0(6), 123 P.2d 643.

¶ 7 Consequently, an award of support could not be modified because of “changes in the circumstances of the parties.” Bishop, 1944 OK 180, ¶ 5, 148 P.2d at 474. And, certainly, “in no case d[id] the husband have the right to modification of an alimony judgment, ... on account of remarriage of his wife to another man.” Gilcrease, 1939 OK 532, ¶ 10, 98 P.2d at 907. This was so, even when, at the time of entering the decree, the trial court had ordered alimony to cease if wife remarried. Bishop, 1944 OK 180, ¶ 7, 148 P.2d at 475.

¶ 8 In 1965, the Legislature began the process of radically changing this policy. That year, it enacted 12 O.S. Supp.1965 § 1289(b) which provided:

In a divorce decree which provides for periodic payments of alimony, the Court' may, in its discretion, declare that the obligation to pay future installments automatically ceases on the death or remarriage of the person receiving alimony.

(Emphasis added.) Two years later, the Legislature amended § 1289 to mandate termination of spousal support upon remarriage of the recipient, but added a provision permitting the post-remarriage continuation of support upon an application filed within ninety days of remarriage and “a proper showing that said support is still needed and that circumstances have not rendered payment of the same inequitable.” 12 O.S. Supp.1967 § 1289(b). This provision, essentially unchanged over the years, but as renumbered, now provides:

The court shall ... provide in the divorce decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate.Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage.

43 O.S. § 134(B). (Emphasis added.)

¶ 9 With the development of § 1289(b) and § 134(B), support alimony judgments have undergone a remarkable metamorphosis. What started out as an absolutely final judgment, not modifiable or terminable regardless of the remarriage of the recipient, grew into a judgment which might terminate upon remarriage at the discretion of the court, and matured into a judgment which absolutely terminated upon remarriage, unless the recipient commenced an action within ninety days to show continued need and no change of circumstance rendering continued payment inequitable.

¶ 10 Over the years, the Oklahoma appellate courts have had only a few occasions to examine the reach of § 1289(b) and § 134(B). Ex-Husband argued that Overton v. Overton, 1978 OK CIV APP 16, 578 P.2d 1216, and Kildoo v. Kildoo, 1989 OK 6, 767 P.2d 884, governed this case and made clear the only relevant inquiry concerning the continuation of support alimony after remarriage is whether new husband is capable of providing any support.

¶ 11 In Overton, the Court of Appeals opined:

_The legislation rest[s] on the assumption that ordinarily a woman would no longer need to be supported by her former husband if she remarried because of the new husband’s obligation to support her. Just in case, however, the unforeseeable occurred and the later husband for some reason could not support her, the statute empowered the court to grant the woman post-remarriage relief but only during a three month period. The emphasis of the statute is on the existence of an alimony recipient’s need for support during the immediate post-remarriage period. If under normal circumstances, for example, economic disaster does not descend upon the woman until four months after remarriage the court is powerless to reinstate an earlier terminated alimony provision.
_[T]he statute’s unusual grant of post-remarriage relief is a concession to the remote chance of unusual circumstances.

1978 OK CIV APP 16, ¶¶ 3, 5, 578 P.2d at 1217. (Emphasis added.) In Kildoo, the Supreme Court observed:

.... “The interests of justice require ... that, as between successive husbands, the wife look to the last one for support, and, certainly, that she be given neither two sources of support nor the ability to choose between her first and second husbands for the more profitable.”

1989 OK 6, ¶¶ 7, 767 P.2d at 885-886. Thus, argues Ex-Husband, if the new husband is capable of providing any support to the recipient wife, support alimony must be terminated, and whether the new husband is capable of supporting the ex-Wife to the same degree as ex-husband’s support alimony is irrelevant.

¶ 12 In the present case, the trial court agreed with ex-husband, reasoning Overton and Kildoo dictated the result, and held that “alimony cannot continue because Mr. Bales -is capable of earning a living and supporting” Wife. However, we believe the trial court’s reliance on these cases is misplaced.

¶ 13 Kildoo dealt with whether the annulment of the recipient spouse’s second marriage (for fraud by both parties) affected previously awarded alimony. “Agreed annulments grounded upon fraud by both parties as a basis for receiving alimony payments from a previous spouse is a cause for concern to this Court,” and, “where the annulment was based upon fraud, the majority view appears to be that alimony will not be reinstated.” Kildoo, 1989 OK 6, ¶¶ 5, 7, 767 P.2d at 885. Whether to reinstate alimony after an annulment is a question legally and factually distinguishable from the issue in the present case.

¶ 14 More importantly, the decisions in both Overton and Kildoo turned on the effect of the support recipient’s failure to timely apply for the continuation of support after remarriage, and in both eases, the appellate courts held such failure fatal to relief.' Consequently, any discussion in those cases concerning the circumstances under which support alimony might continue after remarriage must be regarded as mere dicta."

¶ 15 Since here, there is no question concerning timeliness of Wife’s application in the present case, we are presented with a first impression question: under what circumstances may a court order support alimony to continue after remarriage of the recipient spouse?

¶ 16 “Fundamental to statutory construction is to ascertain and give effect to legislative intent.” Humphries v. Lewis, 2003 OK 12, ¶ 7, 67 P.3d 333, 335. In this task, we are guided by the language of the statute. Id.

¶ 17 While Oklahoma appears to be the lone state which, by specific statutory provision, allows the continuation of support alimony after remarriage, our statutory experience after 1965 mirrors the development of the law in other states. Our review of the decisions from other jurisdictions reveals essentially three approaches to the effect of remarriage on support alimony awards.

¶ 18 A few courts hold that remarriage automatically terminates support alimony. See, e.g., Keller v. Keller, 130 Idaho 661, 946 P.2d 623 (1997); East v. East, 493 So.2d 927 (Miss.1986); Voyles v. Voyles, 644 P.2d 847 (Ak.1982). In Voyles, for instance, the state supreme court adopted a policy of automatic termination based on the presumption that the subsequent marriage will provide adequate support to the recipient spouse. 644 P.2d at 849.

¶ 19 The great majority of jurisdictions, however, hold that an automatic termination rule is too rigid and does not account for all circumstances which might arise after remarriage of the recipient spouse. But after that, courts follow two different approaches.

¶ 20 Under the first approach, some courts take the view that remarriage constitutes a change of circumstance which may or may not require termination. Under this view, remarriage is but one of many factors to be considered, and the payor spouse bears the burden to show alimony is no longer needed. See, e.g., Swetich v. Smith, 802 P.2d 869, 871 (Wyo.1990); Bates and Bates, 303 Or. 40, 733 P.2d 1363, 1366 (1987). As the Oregon appellate court noted:

[Oregon statute permits] the modification or termination of a spousal support award when there has been a substantial change in the parties’ economic circumstances. [R]emarriage may result in such a change. However, nothing in the statute suggests that the economic effects of remarriage should be treated differently than any other change of circumstances.

Matter of Marriage of Fouts, 98 Or.App. 483, 779 P.2d 145, 146 (1989).

¶21 Under the second approach, other courts hold that while remarriage may not automatically terminate support alimony, remarriage establishes a prima facie case for termination or modification, and in these jurisdictions, the recipient bears the burden to demonstrate extraordinary circumstances mandating continuation of support alimony. See, e.g., Matter of Marriage of Quint, 258 Kan. 666, 907 P.2d 818 (1995); In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985); Nugent v. Nugent, 152 N.W.2d 323 (N.D.1967). As the South Dakota Supreme Court summarized:

“Proof that the spouse receiving spousal support payments has remarried establishes a prima facie case requiring the court to terminate the support payments unless there are extraordinary circumstances which justify continuance of the payments.” .... “[Wjhile the subsequent remarriage of a spouse does not result in automatic termination of an alimony obligation, it shifts the burden to the recipient to show that extraordinary circumstances exist which require the continuation of the alimony payments.” .... Sound public policy abounds to support this holding. South Dakota law places a statutory duty on one spouse to support the other.

Marquardt v. Marquardt by Rempfer, 396 N.W.2d 753, 756 (S.D.1986).

¶22 This second view appears the closest to the § 134(B) regime because: (1) our statute clearly envisions termination after remarriage in ordinary circumstances; (2) the statute places the burden on the recipient to demonstrate grounds for continuation; and (3) 43 O.S. §§ 201 and 202 require spouses to support each other, and thus, reflect Oklahoma’s strong public policy favoring support by the current husband. We therefore hold that § 134(B) contemplates the continuation of support alimony after the recipient’s remarriage only in unusual or “extraordinary” circumstances.

¶ 23 Having so held, the next question becomes, what circumstances may be considered extraordinary? Some courts take the view that nothing short of economic disaster is sufficient. In Keller v. O’Brien, 420 Mass. 820, 652 N.E.2d 589 (1995), the court found that remarriage did not automatically terminate support:

Instead, the recipient spouse’s remarriage makes a prima facie case which requires the court to end alimony, absent proof of some extraordinary circumstances, established by the recipient spouse, warranting its continuation. This approach affirms the general principle that alimony should terminate on the recipient spouse’s remarriage, but also allows courts to override this principle on evidence produced showing certain rare and exceptional circumstances. Under this prima facie approach, alimony would survive remarriage only in those rare situations which involve an on-going and legitimate need for continuation of alimony payments. For example, if a remarried recipient spouse becomes a public charge, a judge may order the former spouse to continue making alimony payments. Although this may burden the payor spouse, we believe that he or she should not be relieved of the obligation to pay alimony if the result would be to burden the taxpayers of this [state] with support of the remarried recipient spouse.
In so holding, we recognize that, except in extraordinary circumstances, it is “illogical and unreasonable” that a spouse should receive support from a current spouse and a former spouse at the same time. The new spouse does, after all, assume a duty to support on marriage. We believe that “the remarriage should serve as an election between the support provided by the alimony award and the legal obligation of support embodied in the new marital relationship.” Absent extraordinary circumstances, the former spouse should not be required to pay alimony when another person has assumed the support obligation.
.... The mere fact that, without alimony, the defendant would not be able to live with her second husband in the way in which she lived prior to her marriage to him is not a valid reason to continue alimony.

652 N.E.2d at 593-594. (Citations omitted.) (Emphasis added.)

¶24 In Nugent, wife contended alimony should continue “because she would not be able without it to live with her second husband in the way in which she lived while married to” her first husband. 152 N.W.2d at 328. The state supreme court expressly found these “facts do not constitute such extraordinary circumstances as would justify the continuance of the alimony or support payments.” 152 N.W.2d at 328.

¶ 25 Clearly, in' these jurisdictions, the recipient spouse’s desire for continued support alimony because her new husband cannot provide support at her accustomed level would not be considered “extraordinary” and “a valid reason to continue alimony,” because it is generally against public policy to require one man to support the wife of another, who has himself assumed the legal obligation of spousal support. Keller, 652 N.E.2d at 594; Marquardt, 396 N.W.2d at 756.

¶ 26 However, in other jurisdictions which apply the extraordinary circumstance test, the great disparity in income between the first and second husbands may be enough to justify continuation of the support alimony obligation after remarriage of the recipient spouse. As the Iowa appellate court observed:

In the case at bar, the former husband’s net taxable annual income is $220,000. The current husband’s income is $30,000. The wife cannot support herself with the support she receives from her new husband in the manner of the life style established in the previous marriage. We find the wife has established the required record to prove extraordinary ■ circumstances requiring continuation of alimony.

In re Gillilland, 487 N.W.2d 363, 366 (Iowa App.1992).

¶27 So, in Oklahoma, is a showing that the new husband does not support wife at a level comparable to her support alimony sufficient to meet the recipient spouse’s burden to show “extraordinary” circumstances requiring a continuation of alimony? We conclude that it is not. We agree with Nu-gent, that a spouse does not show extraordinary circumstances under § 134(B) simply by showing she cannot continue the same life style in her new marriage that she experienced as a result of receiving support alimony. This is the essence of Wife’s argument, which we reject. Wife did not therefore sustain her burden under § 134(B).

¶ 28 In this case, the trial court found Kildoo and Overton controlling and looked solely to whether Ex-Wife’s new Husband was capable of earning a living and supporting her. Based on our analysis, we believe this standard is too narrow. However, we affirm’ the trial court because it reached the correct result. See, e.g., Shelley v. Kiwash Elec. Co-op., Inc., 1996 OK 44, ¶ 16, 914 P.2d 669, 674.

¶ 29 The order of the trial court is therefore AFFIRMED.

ADAMS, P.J., and BUETTNER, V.C.J., concur.

      . As a fitness instructor. Husband testified he trains 5-6 people per day, 5 days per week, and earns $25-$45 per hour for his services.

      . "There is no fixed standard or formula by which the amount of alimony is determined in a suit for alimony with or without divorce, however the courts do frequently enumerate some of the factors that should enter into consideration of the question and, without referring exclusively to either one of the spouses, have included in such enumerations the financial circumstances of the parties; reference in some instances to their incomes and necessities; the contributions of each to the accumulated property; their probable • future prospects; their' sex, age, health; their station in life; their children, if any; the duration of the marriage and the wife's, as well as the husband's,_ capacity or lack of capacity to earn.”

      . See, e.g., Perry v. Perry, 1976 OK 57, 551 P.2d 256; Stuart v. Stuart, 555 P.2d 611; Acker v. Acker, 594 P.2d 1216. Peny and Stuart dealt with the question of whether the parties could, by agreement, waive statutory provisions for ter-initiation of support and permit continuation of support after remarriage. Acker held that support terminated unless an action was commenced within ninety days of remarriage.

      ."Because there is a legal obligation of support embodied in the new marital relationship, the obligation of support from the past marital relationship should end. While the legal obligation of support is not the equivalent of actual support, the court will presume from the fact of remarriage that adequate support for the necessities of living will be provided to the dependent spouse through the new marriage. In this way, we avoid constant judicial intrusion into the new marital home to determine if sufficient support exists to constitute a substantial change of circumstances requiring termination of alimony.”

      . Conteary to the Overton characterization of § 134’s "unusual grant of post-remarriage relief.” (Emphasis added.)

      . “[R]emarriage of the supported spouse may represent a change in circumstances; as we have pointed out, however, it will not automatically terminate a spousal support award. This is so because remarriage of a supported spouse will not always supplant the purposes behind the initial award. Support should be terminated when the purposes of the initial award have been met.”

      . "Husband and wife contract towards each other obligations of mutual respect, fidelity and support.”

      . “The husband must support himself and his wife out of the community property or out of his separate property or by his labor. The wife must support the husband when he has not deserted her out of the community properly or out of her separate property when he has no community or separate property and he is unable from infirmity to support himself.”