author: BAY MITCHELL, Judge.

text:
    2002 OK CIV APP 125
    CHESAPEAKE OPERATING, INC. and Chesapeake Exploration Limited Partnership, Applicants/Appellees, v. BURLINGTON RESOURCES OIL & GAS COMPANY, Respondent/Appellant.
    No. 97,129.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Aug. 30, 2002.
    Certiorari Denied Dec. 3, 2002.

      Billy M. Croll, Oklahoma City, OK, for RespondenVAppellant.
    John C. Moricoli, Jr., Philip A. Schovanec, Freda L. Williams, Oklahoma City, OK, for Applicant/Appellee.
   Opinion by

BAY MITCHELL, Judge.

¶ 1 Appellant, Burlington Resources Oil & Gas Company (“Burlington”) appeals a pooling order of the Oklahoma Corporation Commission (“Commission”), granted upon application of Appellees, Chesapeake Operating, Inc. and Chesapeake Exploration Limited Partnership (“Chesapeake”). Having reviewed the record, we affirm.

Factual Background and Procedural History

¶ 2 Chesapeake applied to the Commission for an order pooling the Brown Dolomite, Virgil, Missouri, Des Moines (a.k.a. Granite Wash), Atoka and Morrow common sources of supply underlying all of Section 36, Township 11 North, Range 23 West, Beckham County, Oklahoma. The Commission granted Chesapeake’s pooling application. Burlington appeals the Commission’s pooling order, arguing that (1) the Commission is without jurisdiction to issue a pooling order because a private joint operating agreement (“JOA”) exists between Burlington and Chesapeake; (2) no emergency existed requiring the Commission to issue a pooling order prior to determining whether a JOA exists between Burlington and Chesapeake; (3) it was reversible error for the Commission not to determine if a JOA exists between Burlington and Chesapeake; (4) the Commission misinterpreted the law in refusing to consider the record evidence that a JOA. exists; and (5) even if the Commission properly exercised its authority to pool Burlington’s interest with respect to the other common sources of supply, it did not have the power to do so regarding the Des Moines common source of supply because the Des Moines was already producing in Section 36, only one well is permitted to produce in a single unit for each common source of supply, and Chesapeake had neither applied for nor received the necessary increased density order.

¶ 3 In 1980, El Paso Natural Gas Company (“El Paso”), Exxon Company USA (“Exxon”), and Universal Resources Corporation (“Universal”), and several other companies entered a JOA by which they unitized their acreages in a four-section area including Sections 25-11N-23W, 30-11N-22W, 31-11N-22W, and 36-11N-23W, and designated Universal as the Operator of the Contract Area. With the exception of a few owners in Section 36 who did not join the JOA, the companies owned the vast majority of interests in the four sections. The parties calculated their respective interests in the Contract Area by dividing the number of acres they owned by the total number of acres in the four sections, without regard to the sections in which they actually owned interests. The parties agreed that Universal would get credit for all of the acreages not subject to the JOA (the interests that would have to be pooled by order of the Commission). Accordingly, Universal’s pooling application did not name El Paso or Exxon as respondents, given that both companies were unitized along with Universal under the JOA. A deep test was drilled — the Marriott # 1-36 — which served to hold the original pooling orders.

¶ 4 Burlington later succeeded to El Paso’s interest in the four-section area, and Questar Exploration and Production Company (“Questar”) succeeded to Universal’s interest.

¶ 5 In 2000, R. Michael Lortz acquired an interest in Section 36 from Marcus Fuller, one of the owners who was not subject to the JOA but whose interest in the Marriott # 1-36 was force pooled by Universal pursuant to Order No. 169326, dated May 14, 1980, as amended by Order No. 1Y0290, dated June 2, 1980 (“the original pooling orders”).

¶ 6 Wishing to drill an additional well in Section 36, Lortz applied to the Commission on January 16, 2001, seeking to clarify and amend the original pooling orders to add provisions regarding the drilling of subsequent wells, designation of an operator of subsequent wells, compensation in lieu of participation, election periods, and designation of the prior orders as “unit pooling.” Lortz named all of the owners — including Burlington and Exxon, even though they were not subject to the original pooling orders Lortz was seeking to amend — as respondents to his application.

¶ 7 After a hearing, the Commission issued Order No. 449239 on February 20, 2001, holding that Order No. 169326 as corrected by Order No. 170290 is a unit pooling having continuing effectiveness by virtue of the initial Section 36 well; that those parties who participated in the drilling of the Section 36 well pursuant to the original pooling orders are deemed to be parties having the right to drill and participate in a subsequent well; that those parties failing to participate pursuant to the terms set forth in the new order would forfeit their rights for further unit participation; and specifying the terms of both election periods and compensation in lieu of participation. Burlington received notice of Order No. 449239 but did not appeal, given that it was not subject the original pooling orders amended thereby.

¶ 8 Lortz sent a well proposal and AFE tó Burlington the following week via certified mail, as required by Order No. 449239, proposing the drilling of an additional well in Section 36 and requesting an election as to Burlington’s participation. Again, believing it was not subject to Order No. 449239 because it was not subject to the original pooling orders, Burlington never sent a written response to Lortz’s request. Under the terms of the subsequent well provision of Order No. 449239, failure to make a written election to a written well proposal results in the respondent defaulting to the cash-consideration-in-lieu-of-participation provision whereby it receives $300 per acre plus 1/8 royalty and forfeits its rights in further unit participation.

¶ 9 Also in ■ February 2001, Chesapeake succeeded to the interests of Questar in Sections 30 and 31 of the four-section unit covered by the JOA. Several months later, in July of 2001, Chesapeake entered into a letter agreement with Lortz to obtain, upon completion of the well, an assignment of his interest in Section 36.

¶ 10 On August 4, 2001, shortly before the 180-day period to commence a proposed well expired, Chesapeake, utilizing Lortz’s authority under the subsequent well provision of Order No. 449239, commenced well operations for the Unit well, the Marriott # 1-36.

¶ 11 On August 30, 2001, Chesapeake notified Burlington that it was proceeding to drill the Marriott # 1-36 as outlined in Lortz’s February 21, 2001 letter. Chesapeake enclosed a check for Burlington’s interests pursuant to the cash-consideration-in-lieu-of-participation provision of said order, believing that Burlington had elected out of the well by failing to respond in writing to Lortz or pay its share of the well costs.

¶ 12 Burlington returned the cheek to Chesapeake on September 21, 2001, alleging it was not bound by Order No. 449239, that it was entitled to elect under the JOA because Burlington and Chesapeake share a common interest under the JOA and because it participated in the in the original well under the JOA.

¶ 13 Chesapeake disputes that it is a party to the JOA in Section 36, arguing that it received its interest in Section 36 from Lortz, whose interest was not subject to the JOA. Chesapeake does not deny, however, that its interests in Sections 30 and 31 may be subject to the JOA and that the JOA is a four-section operating agreement that covers Section 36. Further, Chesapeake apparently calculated Burlington’s interest in Section 36 (approximately 31%) based on the terms set forth in the JOA, not record title.

¶ 14 Unable to resolve its dispute with Burlington, Chesapeake filed an application with the Commission on September 21, 2001, requesting that, if the Commission agreed that Burlington has an open interest, it issue an order pooling Burlington’s interest in the six named common sources of supply in Section 36, giving Burlington a five-day election period, and requiring Burlington to tender its proportionate share of estimated completed well costs with its election into an escrow account until Burlington has resolved its title issue by final, unappealable order in an Oklahoma court of general jurisdiction. Because the well was presently drilling and nearing completion, Chesapeake sought expedited review of its pooling application.

¶ 15 After a hearing, the ALJ found that Order No. 449239 effectively pooled the owners in the unit, including Burlington, and that it established a plan of development for the unit and all the owners therein. Accordingly, the ALJ dismissed Chesapeake’s pooling application, determining that the matter was res ftidicata based on prior orders of the Commission. The ALJ found that since Burlington did not respond timely to Lortz’s proposal letter and AFE, it had, by default, elected out of the second well and future unit operations in Section 36. Burlington appealed.

¶ 16 On appeal, the Referee found that Lortz, in his pooling application, failed to plead or otherwise express any intent to bring Burlington — or any of the other Section 36 interest owners who had participated in the original well pursuant to the JOA rather than the original pooling orders— within the purview of those original pooling orders. The Referee concluded that Burlington was thus without proper notice of the nature of the proceedings to be conducted in regards to its interest. In addition, the Referee noted that the express language of Order No. 449239 demonstrates the Commission’s intent to apply the original pooling orders as amended only to those parties who participated in the drilling of the initial well under the original pooling orders. Accordingly, the Referee concluded that to make Burlington subject to the original pooling orders through the clarification order would be a violation of Burlington’s procedural due process rights, and reversed the ALJ’s determination that Burlington was subject to the original pooling orders as amended.

¶ 17 The Appellate Referee further determined that the existence of a dispute between Burlington and Chesapeake as to whether the JOA covers the interests acquired by Chesapeake in the four-section area does not function to deprive the Commission of its jurisdiction to apply the State police power to pool Burlington’s interest in the present well. Noting that the Commission is without jurisdiction to determine private disputes — such as whether the JOA covers the interest Chesapeake acquired from Questar and extends to the non-JO A interest in Section 36 that Chesapeake acquired from Lortz — the Referee concluded that Burlington’s remedy would be to file an action in the district court to adjudicate its claim that, in light of the JOA, the Commission’s pooling order is void as to Burlington’s interest. Accordingly, the Referee determined that it was proper for Chesapeake to invoke the Commission’s pooling power as to Burlington’s interest. The Referee recommended that an order issue granting Chesapeake’s application for pooling Section 36, providing a five-day period in which Burlington could elect, and requiring Burlington to deposit its share of the production costs into an escrow account pending final resolution of outstanding title disputes.

¶ 18 The Referee also rejected Burlington’s argument that the Des Moines (a.k.a. Granite Wash) formation should be deleted from the scope of the order because Chesapeake had not yet sought or received an increased density order giving it permission to drill that particular common source of supply. The Referee noted that the Commission consistently grants pooling applications containing common sources of supply that require additional increased density authority before drilling and that 52 O.S. Section 87.1 requires only that an owner propose to drill a well to a common source of supply. The Referee found that these facts, coupled with the presumption that an operator will comply with Commission rules, regulations, and orders in its actions, favor the inclusion of the Des Moines (a.k.a. Granite Wash) foundation within pooling order to provide orderly development thereof.

¶ 19 On December 8, 2001, the Commission adopted the Referee’s findings and recommendations and issued Order No. 458030, force pooling the interests of Burlington in the Brown Dolomite, Virgil, Missouri, Des Moines (a.k.a. Granite Wash), Atoka, and Morrow common sources of supply underlying all of Section 36, Township 11 North, Range 23 West, Beckham County, Oklahoma; setting an election period of five days from the date of the order; requiring those interest holders who elect to participate in production to pay their estimated proportionate share of the well costs to Chesapeake within five days of the order; and mandating that Chesapeake sequester such funds in a segregated escrow account until such time as any pending title disputes have been resolved between the parties by agreement or final unappealable judgment in a court of competent jurisdiction. The Commission reasoned that its pooling order is “just and reasonable and will afford each owner in the unit the opportunity to recover or receive without unnecessary expense his just and fair share of the production from the unit” and that it is needed “to avoid the drilling of unnecessary wells and to protect correlative rights.”

Standard of Review

¶ 20 Article 9, § 20 of the Oklahoma Constitution mandates the use of a “substantial evidence” test for reviewing decisions of the Commission in cases that do not involve constitutional issues. MCI Communications Corp. v. State, 1991 OK 86, ¶ 22, 823 P.2d 351, 358 (holding that review of orders of the Commission shall be judicial only and not extend further than to determine whether the Commission has regularly pursued its authority, and whether its findings and conclusions, are sustained by the law and substantial evidence); El Paso Nat’l Gas v. Corporation Comm’n, 1981 OK 150, ¶ 6, 640 P.2d 1336, 1338. “Under such rule the determination of whether substantial evidence exists to support a Corporation Commission order does not require that the evidence be weighed, only that there be evidence tending to support such order.” El Paso, at ¶ 6, 640 P.2d at 1338, citing Yellow Transit Co. v. State, 1947 OK 45, 178 P.2d 83. In so doing, we must examine the totality of the record and determine that the proof is more than a mere scintilla. MCI, at ¶22, 823 P.2d at 358, citing Teleco, Inc. v. Corporation Comm’n, 1982 OK 124, ¶ 6, 653 P.2d 209, 212.

¶ 21 “A presumption of correctness accompanies the Corporation Commission’s findings in matters it frequently adjudicates and in which it possesses expertise.” Smith Cogeneration Mgmt., Inc. v. Corporation Comm’n, 1993 OK 147, ¶ 9, 863 P.2d 1227, 1232. Indeed, the Commission has wide discretion in the performance of its duties and “this court may not substitute its judgment on disputed questions of fact unless the findings are contrary to law or unsupported by substantial evidence.” MCI, at ¶22, 823 P.2d at 358. The burden is on the appealing party to show that the order in the respects challenged is contrary to the weight of the evidence. PCX Corp. v. Oklahoma Corporation Comm’n, 1984 OK CIV APP 50, 699 P.2d 1103.

Analysis and Review

¶ 22 A review of the supportive facts presented compels the conclusion that the Commission regularly pursued its authority in issuing Order No. 458030 and that said order is supported by substantial evidence.

¶23 Oklahoma’s Conservation of Oil and Gas Act confers upon the Commission the authority to order forced pooling to protect correlative rights of mineral interest owners within a spacing unit. Section 87.1(e) of Title 52 provides in part:

When two or more separately owned tracts of land are embraced within an established spacing unit, or where there are undivided interests separately owned, or both such separately owned tracts and undivided interests embraced within such established spacing unit, the owners thereof may validly pool their interests and develop their lands as a unit. Where, however, such owners have not agreed to pool their interests and where one such separate owner has drilled or proposes to drill a well on said unit to the common source of supply, the Commission, to avoid the drilling of unnecessary wells, or to protect correlative rights, shall, upon a proper application therefor and a hearing thereon, require such owners to pool and develop their lands in the spacing unit as a unit.

52 O.S.2001 § 87.1(e) (emphasis added). The Commission “has the sole authority to adjust the equities and to protect the correlative rights of interested parties.” Woods Petroleum Corp. v. Sledge, 1981 OK 89 ¶ 6, 632 P.2d 393, 396.

¶ 24 It is undisputed that Burlington has not agreed to pool its interests with Chesapeake. Indeed, this disagreement between the parties is the genesis of the present action. In addition, the Commission had evidence before it of a drilling proposal by Lortz, commencement of a well within 180 days thereof by Chesapeake, and a proper pooling application by Chesapeake. These factors meet the express terms of 52 O.S. 2001 § 87.1(e) set forth above, under which the Commission is empowered to require owners to pool their interests and develop their lands as a unit.

¶25 Burlington’s underlying argument— that it should not be subject to the Commission’s force pooling order and the Commission is without jurisdiction to force pool Burlington because a private agreement, the JO A, controls — is not a dispute over rights and equities of interest owners within a drilling and spacing unit “which actually affects [correlative] rights within a common source of supply and thus affects the public interest in the protection of production from that source as a whole,” but a private dispute over the application and interpretation of a contract. Samson Resources Co. v. Corporation Comm’n, 1985 OK 31, ¶ 9, 702 P.2d 19, 22; see also Atlantic Richfield Co. v. Tomlinson, 1993 OK 106, 859 P.2d 1088. “[Disputes over private rights are properly brought in the district court .... the [Commission’s jurisdiction is limited to protection of public rights in development and production of oil and gas.” Leek v. Continental Oil Co., 1989 OK 173, ¶ 7, 800 P.2d 224, 226 (emphasis in original). Interpretation of the applicability of the JOA would be beyond the Commission’s conferred jurisdiction because it concerns a dispute between private parties in which the public interest in correlative rights is not concerned. Id. Accordingly, Burlington’s recourse properly lies with the District Court.

¶ 26 Burlington’s claim that the Commission did not have the power to pool Burlington with regard to the Des Moines (a.k.a. Granite Wash) common source of supply because Chesapeake does not yet have the requisite increased density order is likewise without merit. As stated by the Appellate Referee, “[t]he Commission has consistently granted pooling applications containing common sources of supply that would require additional increased density authority before a well could be drilled .... [and presumes] that an operator will comply with the Commission’s rules, regulation and orders in its actions.” Given the Commission’s substantial expertise in this area, we must presume the correctness of these findings as they are not otherwise contrary to law. Smith ¶ 9, 863 P.2d at 1232. Indeed, 52 O.S.2001 § 87.1(e) requires only that an applying owner “proposes to drill a well on said unit to the common source of supply” for the Commission to exercise its pooling power. Accordingly, it was within the Commission’s jurisdiction and authority to include the Des Moines common source of supply in Order No. 458030.

Conclusion

¶27 We find the Commission regularly pursued its authority under its rules and that the pooling order was within its discretion and supported by substantial evidence. Accordingly, Order No. 458030 of the Oklahoma Corporation Commission is hereby AFFIRMED.

HANSEN, P.J., and ADAMS, J., concur.

      . If Burlington were to elect under the JOA, it could participate in subsequent unit development, whereas Burlington would be precluded from participating in subsequent unit development under the terms of the pooling order because it failed to elect and pay its share of costs in response to Lortz's February 21, 2001 letter.


source: Caselaw Access Project

author: CAROL M. HANSEN, Presiding Judge:

license: Public Domain

text:
    2002 OK CIV APP 115
    H.L. MITCHELL, Plaintiff/Appellee, v. GRIFFIN TELEVISION, L.L.C., an Oklahoma corporation, and Chris Halsne, an individual, Defendants/Appellants.
    No. 96,640.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 6, 2002.
    Certiorari Denied Nov. 25, 2002.

      Douglas E. Stall, David Von Hartitzsch, Latham, Stall, Wagner, Steele, & Lehman, Tulsa, OK, Clyde A. Muchmore, Mary Hirth Tolbert, Crowe & Dunlevy, Oklahoma City, OK, for PlaintiffAppellee.
    Robert D. Nelon, Jon Epstein, Susanna G. Voegeli, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, OK, for Defendants/Appellants.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Defendant/Appellants, Griffin Television, L.L.C. (Griffin) and Chris Halsne (collectively KWTV), seek review of the trial court’s judgment based on a jury verdict in favor of PlaintiffAppellee, H.L. Mitchell. We affirm as to the finding of liability and award of punitive damages, reverse as to compensatory damages, and remand for new trial as to compensatory damages.

¶ 2 Mitchell is a veterinarian in Bristow, Oklahoma. Between January 27, 1998, and September 13, 1998, KWTV broadcast seven stories dealing with Mitchell’s treatment of a halter horse named This Lady Sings at the 1997 World Quarter Horse Championships in Oklahoma City and the death of a quarter horse named Doo Dominate at the All American Futurity in New Mexico on September 5, 1994. Mitchell sued KWTV for defamation and false light invasion of privacy arising from the stories.

¶ 3 A jury trial took place in June 2001. At the close of evidence, KWTV moved for a directed verdict. The trial court denied the motion and submitted the case to the jury. The jury specially found Griffin and Halsne acted in reckless disregard of the truth of the statements published and intentionally and with malice concerning Mitchell. It awarded $6,000,000.00 in actual damages against Griffin and Halsne, $250,000,000 in punitive damages against Griffin, and $250,000.00 in punitive damages against Halsne. The trial court granted judgment for the verdict amount, as well as $1,323,950.00 in prejudgment interest and $5,010.02 in costs, for a total judgment

¶ 4 One group of KWTVs contentions raises the issue of whether there was sufficient evidence for the jury to hold KWTV liable to Mitchell. KWTV argues the trial court should have directed a verdict in its favor because Mitchell (1) failed to present evidence from which a jury could reasonably conclude any of the statements about which he complained is substantially false, (2) presented no evidence of special damages to support a defamation per quod claim, (3) failed to submit expert testimony that KWTV departed from the standard of care to which reasonable journalists ordinarily adhere under similar circumstances, (4) failed to present clear and convincing evidence of actual malice, and (5) put on no evidence any harm to his reputation was caused by false statements rather than true ones. 'Because the last contention relates to damages, we will address it in Part II below.

¶ 5 In order to recover for defamation, a private figure must prove (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actiona-bility of the statement irrespective of special damage, or the existence of special damage caused by the publication. Sturgeon v. Reth-erford Publications, Inc., 1999 OK CIV APP 78, 987 P.2d 1218, 1223. If the publication is a fair and true report of a proceeding authorized by law or anything said in the proceeding, it is privileged. 12 O.S.1991 § 1443.1(A). Negligence is the failure to exercise ordinary care, which is “that degree of care which ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances.” Martin v. Griffin Television, Inc., 1976 OK 13j 549 P.2d 85, 92. Slander is actionable per se, without a showing of actual damage, if it falls within the first four sections of 12 O.S.1991 § 1442. Standifer v. Val Gene Management Services, Inc., 1974 OK CIV APP 41, 527 P.2d 28, 31.

¶ 6 While negligence is the minimum level of fault necessary for a private figure to recover for slander, the plaintiff may expand the relief available by showing greater culpability on the defendant’s part. Upon a showing of actual malice, the plaintiff may recover punitive damages, and, where otherwise allowed, presumed damages. Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85, 93. “Actual malice” means “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Proof of malice obviates the need to prove negligence.

¶ 7 In order to recover for false light invasion of privacy, the plaintiff must show (1) the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light, (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (3) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. McCormack v. Oklahoma Pub. Co., 1980 OK 98, 613 P.2d 737, 740.

¶ 8 In reviewing a judgment based on a jury verdict, we may not disturb the jury’s verdict where there is any competent evidence reasonably tending to support it. The jury is the exclusive arbiter of the credibility of the witnesses, and its verdict is conclusive as tó all disputed facts and all conflicting statements. We must determine the sufficiency of the evidence to sustain a judgment in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it. Florafax Intern., Inc. v. GTE Market Resources, Inc., 1997 OK 7, 933 P.2d 282, 287. As to the element of malice, the evidence must be sufficient for a trier of fact to find or infer its existence subject to a clear and convincing standard of proof. Herbert v. Oklahoma Christian Coalition, 1999 OK 90, 992 P.2d 322, 328. This standard applies to both public officials and private figures. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128, 141 n. 46. However, it does not apply to any element other than malice.

¶ 9 The news stories of which Mitchell complains began with reports relating to This Lady Sings. Mitchell testified he examined the horse soon after she was unloaded at the fairgrounds before the horse show. He said she was “a little tender on her right front foot” and had twisted her shoe. He testified he told the trainer the horse needed a farrier. Mitchell said the trainer was unable to find a farrier that evening and was worried the horse would “fret all night and gan up and lose weight and quit drinking.” Mitchell said he wrapped her foot, but could see she was not very comfortable on it, so he “did a Sarapin posterior digital heel block on her” with “three-quarters of a cc” of Sara-pin, which was “a minute amount.” He said Sarapin is called a natural block in holistic circles and wears off in 24 to 36 hours. Mitchell testified This Lady Sings was not hobbling when he saw her.

¶ 10 This Lady Sings was sold after the show. On January 21, 1998, her purchaser sued the sellers and trainer in federal district court for l'escission of the contract and damages for breach of warranty and fraud in the inducement of the contract. The complaint alleged as follows:

12. That on November 15, 1997, Skoda [the purchaser] had the mare inspected by Dr. Mitchell, a veterinarian on the grounds of the show, who conducted a prepurchase exam of the horse and represented to Sko-
16. That the mare was then presented to the previous examining veterinarian, which [sic] found some bruising on the hoof wall, apparently related to improper shoeing and that silicone had been placed under the pad of the mare’s left hoof; the silicone pads prevented a clear view of the sole at the time of the original purchase examination.
19. That Skoda conducted a further investigation into the unsoundness of the mare and later on November 22, 1997, learned from Dr. Mitchell that prior to the Amateur Division Showing, he had “blocked” one of Casper’s adult horses scheduled to appear in the Amateur Division showing; said block being a veterinary technique to numb pain, so that the horse will not present outward manifestation of pain, or unsound gate.
20. That Casper had only one adult horse to be presented and [sic] the said showing, to wit; “This Lady Sings”.
21. That Casper knew that the mare was unsound at the time of the negotiations with Skoda and had undertaken specific overt acts to disguise the lame condition.

¶ 11 In the January 26, 1998 10:00 p.m. news broadcast, Halsne reported,

This Lady Sings was named best-amateur-in-the-world just three months ago. Now, her new trainer ... says lameness in her front feet have [sic] ended the horse’s career. ...
There is a dark secret to this horse’s injury... One the American Quarter Horse Association has under investigation. This Lady Sings was hobbling before the World Championships... and was given a painkiller. ...
What [Mitchell] did was put a chemical called Sarapin in her foot to mask the pain. Prior to the next evening’s broadcast, KWTV ran a promotional tape in which the announcer stated, “An Oklahoma vet linked in a

Prior to the next evening’s broadcast, KWTV ran a promotional tape in which the announcer stated, “An Oklahoma vet linked in a federal lawsuit to masking the injuries of a champion show horse.” In the 10:00 p.m. broadcast, Halsne reported,

The federal ease says Mitchell knew that This Lady Sings was hobbling before the world show. Afterwards, he examined the horse for a new buyer and didn’t disclose the mare’s previous injury....
Dr. Mitchell claims the horse was badly shod when it came to the world championships, and he simply treated a bruise. The new buyer says the horse’s health condition is chronic.

At trial, Halsne testified he was familiar with the complaint and had it in his possession prior to airing the story.

¶ 12 The complaint in the federal suit did not say Mitchell knew the horse was hobbling before the horse show. While it did accuse the trainer of acting with the purpose of disguising, or masking, the horse’s lame condition, it did not allege Mitchell acted with that purpose. It alleged Mitchell told the buyer he blocked the horse. It alleged the block is a veterinary technique to numb pain, so that the horse will not appear unsound, but it did not allege Mitchell intended it for the purpose of masking the horse’s unsoundness. The complaint did not accuse Mitchell of concealing the horse’s condition when he did the prepurchase exam; rather it alleged the horse’s condition was concealed from Mitchell by the silicone pad on the mare’s left hoof.

¶ 13 Halsne’s statements do not truly and fairly report the allegations in the complaint. Therefore, his publication is not privileged pursuant to 12 O.S.1991 § 1443.1(A). The complaint itself, when compared with Halsne’s statements, is evidence from which the jury could find Halsne made false and defamatory statements to third parties about Mitchell and that the statements tended to injure Mitchell in his profession. Halsne’s own admission he was familiar with the complaint is clear and convincing evidence from which the jury could find he made the statements with reckless disregard as to their falsity. Because Mitchell put on evidence of malice, he did not need to prove negligence. The statements were defamatory per se and not per quod; therefore, Mitchell did not need to prove special damages in order to establish liability for slander pursuant to 12 O.S.1991 § 1442(3). This same evidence would support a finding by the jury of each of the elements of a false light invasion of privacy claim.

¶ 14 The jury’s verdict is also supported by the evidence relating to the news stories about Doo Dominate. Mitchell treated Doo Dominate prior to the 1994 All American Futurity race at Ruidoso Downs racetrack in New Mexico. During the race, the horse stumbled and broke both front legs. Track veterinarians euthanized the horse, took blood and urine samples, and removed his front legs for necropsy. Two other horses broke down and were euthanized that day.

¶ 15 Wayne Conwell, the Medication Manager for the New Mexico State Racing Commission (NMSRC), investigated Doo Dominate’s breakdown. He sent the samples for testing and the legs for necropsy. The necropsy report concluded,

This horse had chronic severe carpal joint disease affecting the left carpus. There were chronic and acute fractures of the radial carpal bone and the 3rd carpal bone in the left carpus.
In summary, the chronic carpal joint disease in the left carpus appeared severe enough to make this horse unfit for racing. Acute left carpal breakdown may have been responsible for the acute fracture of the cannon bone in the opposite leg.

The laboratory to which Conwell sent the urine sample reported the sample tested positive for mepivacaine, a prohibited pain-killer. The horse’s owner exercised his right to send a split sample to an independent laboratory. That laboratory’s results failed to confirm the presence of mepivacaine.

¶ 16 The NMSRC issued a Notice of Contemplated Commission Action against Mitchell, charging him with practicing veterinary medicine in New Mexico without a license and with assisting Doo Dominate’s owner and trainer in running an unfit horse. It did not charge him with giving the horse mepivacaine. After a hearing, the NMSRC issued an order finding Mitchell practiced veterinary medicine at Ruidoso Downs without holding a license issued by the New Mexico Board of Veterinary Examiners. It permanently revoked his owner’s license. However, the order specifically concluded the evidence was insufficient to prove Mitchell assisted the owner and trainer in running an unfit horse.

¶ 17 The NMSRC brought a separate action against the owner and trainer for the use of mepivacaine. It later dismissed those charges because the results of the independent laboratory did not confirm the presence of mepivacaine in Doo Dominate’s mine sample.

¶ 18 Halsne said he looked at these documents before airing his report. He testified,

We were looking for specific documents that support the allegations in front of us about Dr. Mitchell [,] about Doo Dominate .... [W]e couldn’t read every word of those documents and didn’t. We were looking for key pieces that would support our story and maybe shed some light on some areas that didn’t support our story....
[W]e had already done a couple of stories about Dr. Mitchell, and so when we went down we wanted to — I mean our concentration was on ties in [sic] Dr. Mitchell and the death of Doo Dominate and how close those ties were and what they were.

¶ 19 On February 4 and 5, 1998, KWTV repeatedly aired a promotional tape stating, “You’ll be appalled by what racing officials say this vet has done.” In the 10:00 p.m. newscast on February 6, 1998, the anchor introduced Halsne’s story, stating,

[A]n Oklahoma veterinarian is the target of a News Nine investigation tonight. Not only is he accused in a federal lawsuit of giving a world-class quarter horse painkillers before a show here, he’s also suspected of killing one of the country’s top racehorses .... Lead investigator, Chris Halsne has discovered that Dr. Mitchell has a troublesome past....

¶ 20 Halsne then reported,

[T]his incident isn’t the first time Mitchell has been in trouble for his veterinary practices.
Doo Dominate bolted out of Gate 9 during the 1994 All-American Futurity at Ruidoso Downs. One hundred yards from the finish, the powerful colt stumbled, broke both legs, and had to be euthanized. The New Mexico Racing Commission conducted an extensive investigation. An exam afterward showed Doo Dominate competed doped up and with a broken knee.

On March 26, 1998, the anchor introduced another story about Mitchell, stating, “A few months ago a News Nine investigation showed how Mitchell was connected to the doping of a world-class racehorse and a world champion show horse.” Halsne then reported on the rescission of Mitchell’s Oklahoma racing license.

¶ 21 This record presents sufficient evidence from which the jury could find Halsne falsely reported the NMSRC found Doo Dominate raced doped-up and Mitchell was linked to the doping. There is evidence Halsne knew the statement was false or acted with reckless disregard of whether it was false or not. A reasonable jury could find the statement injured Mitchell’s professional reputation. The statement was not a true and fair report of the NMSRC proceeding and therefore is not privileged pursuant to 12 O.S.1991 § 1443.1(A).

¶ 22 Accordingly, we hold there was sufficient evidence for the jury to hold KWTV was liable to Mitchell for slander and false light invasion of privacy.

II

¶ 23 Another group of KWTV’s contentions of error relate to the compensatory damages award. KWTV argues (1) the trial court erred in instructing on presumed damages, (2) Oklahoma law does not permit presumed damages in a defamation case against the media even when actual malice is shown, (3) presumed damages can only be nominal, (4) the compensatory damages awarded bear no rational relationship to the demonstrated harm and are so excessive as to shock the conscience, and, as noted in Part I above, (5) Mitchell put on no evidence any harm to his reputation was caused by false statements rather than true ones.

¶ 24 In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court established the rule requiring proof of actual malice in order for public officials to recover for defamation. It later extended the rule to public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court considered whether to apply the Neio York Times standard to private individuals. It declined to do so, reasoning states have a greater interest in protecting private individuals than public figures from defamation because private individuals have less access to communication channels to counteract false statements and therefore are more vulnerable to injury. Id., 418 U.S. at 344, 94 S.Ct. at 3009. The Court stated,

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

However, the Court then balanced the media’s First Amendment rights against the States’ legitimate interest in compensating private individuals for injury to reputation:

[Tjhis countervailing state interest extends no further than compensation for actual injury.... [W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.

418 U.S. at 349, 94 S.Ct. at 3011.

¶25 The Oklahoma Supreme Court addressed the application of Gertz to then-existing Oklahoma law in Martin v. Griffin Television, Inc., 1976 OK 13, 549 P.2d 85. At that time, Oklahoma statutes allowed a presumption of malice from the publication of unprivileged, defamatory matter. The Court held those statutes were unconstitutional under Gertz because a presumption of malice allows liability without fault. It then chose negligence as the appropriate standard of liability for the publisher of a defamatory falsehood injurious to a private individual in Oklahoma.

¶26 The Oklahoma Supreme Court also overruled as unconstitutional a statutory section requiring a minimum judgment of one hundred dollars because the statute required no proof as to that minimum amount. It stated, “This is a presumed damage not allowed by Gertz without evidence and a finding of actual malice.” Id. at 93.

¶ 27 KWTV argues the statute overruled in Martin was the only source of presumed damages in Oklahoma, and no cases following Martin have allowed presumed damages. As we discussed in Part I, 12 O.S.1991 § 1442 authorizes actions for slander per se, without a showing of actual damage, for false and unprivileged publications falling within the first four sections of the statute. Therefore, the Legislature contemplated presumed damages for slander per se. In light of Gertz, though, presumed damages are only allowed where actual malice is shown.

¶ 28 However, the Legislature has set forth an exception to the allowance of presumed damages in 12 O.S.1991 § 1447.3 (emphasis added):

In any action for damages for any defamatory statement published in or uttered as a part of a television and/or radio broadcast, the complaining party shall be allowed such actual and/or punitive damages as he has alleged and proved.

This statute is controlling in the instant case. Damages must be proved, not presumed. The trial court erred in instructing the jury (1) the law presumes Mitchell suffered general damages if he showed KWTV acted with malice, and (2) it may award presumed, general damages without proof of harm. Therefore, the trial court’s judgment for compensatory damages is reversed and this matter must be remanded for new trial as to the issue of compensatory damages only. On remand, Mitchell must prove his damages proximately resulted from the defamatory statements, but he is not limited to his out-of-pocket loss. He may recover for loss of profits as well as impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering, subject to proof. Martin v. Griffin Television, Inc., 549 P.2d at 93.

¶ 29 Because we reverse the trial court’s judgment as to compensatory damages, we need not reach KWTV’s contentions that presumed damages can only be nominal and the verdict was excessive.

III

¶ 30 KWTV next contends the trial court erred as a matter of law in failing to determine certain statements were not actionable. It argues one group of statements were not actionable because they were not about Mitchell or were not defamatory. In its reply brief, KWTV argues the broadcasts should be viewed as a whole, with the statements considered in context. The gist of the broadcasts as a whole is that Mitchell doped horses to conceal their injuries. The statements in the context of the broadcasts are about Mitchell and are defamatory.

¶ 31 KWTV argues another group of statements were privileged pursuant to 12 O.S. 1991 § 1443.1. As we discussed in Part I, KWTV’s statements did not truly and fairly report legal proceedings. Therefore, its statements are not privileged.

1132 KWTV argues two of the statements were protected opinion. These statements were that the death of one horse was connected to the doping of the other horse and that Mitchell was connected to the doping of both horses. The questions of whether the horses were doped and whether Mitchell was connected to them doping are sufficiently factual to be susceptible of being proved true or false. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1 (1990). Therefore, the statements are not protected opinion.

IV

¶ 33 KWTV’s next group of contentions relate to jury instructions. In reviewing jury instructions on appeal, we must consider the instructions as a whole. The instructions need not be ideal but must reflect Oklahoma law regarding the subject at issue. The test for error in instructions is whether the jurors were probably misled regarding the legal standards they should apply to the evidence. We will not reverse a judgment based on error in instructing the jury unless it clearly appears the instructions given or refused caused a miscarriage of justice. King v. Neal, 2001 OK CIV APP 11, 19 P.3d 899, 902.

¶34 KWTV first argues the trial court erred in refusing to pre-instruct the jury on the elements of Mitchell’s claims and on the definition of actual malice, thus allowing the jury to be “infected with prejudicial evidence and argument.” Even if pre-in-struction would have been helpful, the jurors received the necessary instructions before they began deliberations. We find no error in the trial court’s action.

¶ 35 KWTV next argues the trial court erred in refusing to give constitutionally adequate instructions because it refused to give an instruction regarding what is not actual malice. The jury instructions defining actual malice correctly state Oklahoma law. We are unable to conclude the jurors were probably misled regarding the legal standards they should apply to the evidence.

¶36 KWTV also argues the trial court inadequately defined negligence and direct cause. KWTV fails to support this contention with citations of authority. Accordingly, we will treat it as waived. Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121, 129 n. 11.

¶ 37 We addressed the trial court’s error in instructing on presumed damages in Part II above. KWTV’s next contention is the trial court erred in refusing to give special interrogatories to the jury asking which statements it found to be actionable. The Oklahoma Constitution, Art 7, § 15, requires that all jury verdicts be general verdicts. The trial court has discretion to direct special findings. Id. We will not reverse a trial court under abuse of discretion unless it made a clearly erroneous conclusion and judgment, against reason and evidence. Broadwater v. Courtney, 1991 OK 39, 809 P.2d 1310, 1312. KWTV has failed to show any abuse of discretion in the trial court’s refusal to give special interrogatories.

¶ 38 KWTV’s last argument regarding jury instructions is the trial court erred in instructing on Category II punitive damages because Mitchell failed to show KWTV acted with malice. As we discussed in Part I, Mitchell put on evidence from which the jury could find malice. Therefore, the trial court properly instructed the jury on Category II punitive damages pursuant to 23 O.S.Supp. 1995 § 9.1(C).

¶ 39 The jury awarded punitive damages of $250,000.00 against each defendant. This award would be within the statutory limit set forth for Category II punitive damages regardless of the amount of compensatory damages awarded on remand. However, should the jury and trial court find no actual damages on remand, the punitive damages award must be vacated because § 9.1(C) requires an award of actual damages before punitive damages may be awarded. Accordingly, we do not reverse the award of punitive damages, but instruct the trial court to vacate the punitive damages award in the event there is no award of compensatory damages on remand.

Y

¶ 40 KWTV’s last group of contentions relate to evidentiary rulings. It asserts the trial court made three errors in admitting Mitchell’s evidence, but fails to show how the admission of the evidence affected a substantial right. It argues the trial court improperly excluded testimony from two of its witnesses, but fails to show how that evidence would tend to make the existence of a material fact more or less probable. Therefore, we may not predicate any reversible error upon the trial court’s evidentiary rulings. 12 O.S.1991 §§ 2104(A), 2401, and 2402.

¶ 41 For the foregoing reasons, the judgment of the trial court is AFFIRMED to the extent it found KWTV liable to Mitchell for slander and false light invasion of privacy and awarded punitive damages. It is REVERSED to the extent it awarded compensatory damages. This matter is REMANDED for new trial on the issue of compensatory damages only. The trial court is instructed to vacate the punitive damages award in the event there is no award of compensatory damages on remand.

¶42 The motion of The Reporters Committee for Freedom of the Press and others for leave to file an amicus curiae brief in this appeal was filed after the normal briefing cycle set for the party to be supported. Because the amici have failed to show the requisite extraordinary cause for leave to file their brief, their motion is denied.

¶ 43 AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ADAMS, J. and MITCHELL, J., concur.

      .12 O.S.1991 § 1442 provides,
      Slander is a false and unprivileged publication, other than libel, which:
      1. Charges any person with crime, or with having been indicted, convicted or punished for crime.
      2. Imputes in him the present existence of an infectious, contagious or loathsome disease.
      3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.
      4. Imputes to him impotence or want of chastity; or,
      5. Which, by natural consequences, causes actual damage.

      . See Part II below for a discussion of presumed

      . At the time of the 1994 race, mepivacaine was prohibited within 72 hours of race day. Howev-

      . The owner’s license permitted Mitchell access

      . The Court further explained its holding:
      The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms....
      We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define 'actual injury,' as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
      We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation.... Like the doctrine of presumed damages, juiy discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions.In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.
      418 U.S. at 349-350, 94 S.Ct. at 3011-3012.

      . A new trial may be granted on the issue of damages only in cases where it is clear the error in assessing damages did not affect the entire verdict. Fields v. Volkswagen of America, Inc., 1976 OK 106, 555 P.2d 48, 53.

      . 23 O.S.Supp.1995 § 9.1(C) provides,
      Category II. Where the jury finds by clear and convincing evidence that:
      1. The defendant has acted intentionally and with malice towards others;
      ... the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award exemplary damages in an amount not to exceed the greatest of:
      a. Five Hundred Thousand Dollars ($500,-000.00),
      b. twice the amount of actual damages awarded, or
      c. the increased financial benefit derived by the defendant or insurer as a direct result of the conduct causing the injury to the plaintiff and other persons or entities.


author: KENNETH L. BUETTNER, Judge:

text:
    2002 OK CIV APP 121
    Tammy RECTOR, Plaintiff/Appellee, v. John KIMES, Defendant/Appellant.
    No. 97,491.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Nov. 21, 2002.

      John P. Kent, Massad, Evans & Kent, P.C., Frederick, OK, For Plaintiff/Appellee.
    J.W. Doolin, Lawton, OK, For Defendant/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge:

¶ 1 The parties were divorced September 13, 1994, in Michigan. Legal and physical custody of their child was awarded to them jointly. In November 1994, the Michigan Court entered an order modifying child custody. This order stated that Tammy Kimes (Mother) had moved to Oklahoma, leaving the care of the child with John Kimes (Father). The court left legal custody of the child with both parents, but transferred physical custody to Father. It held Mother’s child support obligation in abeyance. On May 25, 2001, Mother filed a motion to modify the Michigan child custody order in the District Court of Tillman County, Oklahoma, asking that custody be placed with her. She alleged that the child had lived in Tillman County, Oklahoma with her since July 3, 2000 and attended public school (sixth grade) in Frederick, Oklahoma. She claimed that Oklahoma had jurisdiction to modify the Michigan order pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). We hold that the Oklahoma District Court did not have jurisdiction to undertake this matter. We therefore reverse the order of February 14, 2002.

¶2 Father appeared specially and moved to dismiss the proceedings. He did not submit to the jurisdiction of the Oklahoma court, and never asked for relief from the Oklahoma court.

¶ 3 In its order, the trial court found that Father had been served with notice of the hearing on the motion to modify and noted Father’s lawyer’s Motion to Dismiss. It found that it had jurisdiction over Mother and child and that Oklahoma had jurisdiction over the subject matter of the action. It then found Father' in default. The order stated that Oklahoma was the home state of the child. It noted the decree and modification from Michigan. The trial court based its holding of jurisdiction on the UCCJEA, finding that: (1) Oklahoma was the child’s home state; (2) the child and at least one contestant had a significant connection with Oklahoma and that there was available in Oklahoma substantial evidence concerning the child’s present care, protection, training, and personal relationships; (3) no other state would have jurisdiction under the pre-requi-sites of the UCCJEA or the Parental Kid-naping Prevention Act, and that it was in the child’s best interest that the court of Tillman County, Oklahoma assume jurisdiction. It further found that Tammy Rector was a fit and proper person to assume custody of the child and modified the Michigan decrees immediately to give custody to Mother.

¶ 4 The court allowed visitation to Father conditioned on a $20,000 performance bond and further conditioned on Father’s appearance before the court “voluntarily” submitting himself to the court’s jurisdiction. The court ordered Father to pay $911.02 per month to Mother as child support. The court made other orders attendant to the order modifying custody, including ordering Father to pay Mother all of her attorney fees and costs.

¶ 5 We hold that, pursuant to the Oklahoma Child Custody Jurisdiction and Enforcement Act, 43 O.S. Supp.1998 § 551-101 et seq., Oklahoma had no jurisdiction to modify the Michigan decree and order which granted physical custody to Father.

¶ 6 The Oklahoma Uniform Child Custody Jurisdiction and Enforcement Act governs this action and the Oklahoma court was mandated to follow it. Article 2 of the UCCJEA sets forth the requirements for an Oklahoma court to assume jurisdiction. Section 551-203 specifically relates to jurisdiction to modify a child custody determination:

JURISDICTION TO MODIFY DETERMINATION

Except as otherwise provided in Section-16 of this act [43 O.S. § 551-204 (temporary emergency jurisdiction)] a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph 1 or 2 of subsection A of Section 13 of this act [43 O.S. § 551-201] and:
1. The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 14 of this act [43 O.S. § 55-202] or that a court of this state would be a more convenient forum under Section 19 [43 O.S. § 551-207 (inconvenient forum) ] of this act; or
2. A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state. (Emphasis added.)

¶ 7 The facts with regard to jurisdiction are clear. Michigan made the initial determination in the divorce decree which was subsequently modified in Michigan. There was no indication that the Michigan court determined that, (1) it no longer had exclusive, continuing jurisdiction, or (2) that an Oklahoma court would be a more convenient forum. Likewise, it was clear that Father continued to live in Michigan, and that neither Oklahoma nor Michigan found that Father was not still a resident of Michigan. (Father was served by certified mail at his Michigan address.) Therefore, it was irrelevant that Oklahoma could have been qualified to make an initial determination due to home state status. The court erroneously assumed jurisdiction pursuant to the mandates of 43 O.S. Supp.1998 § 551-203.

¶ 8 At the second hearing on the Motion to Dismiss, argued immediately before Mother’s evidence was taken at the hearing on her Motion to Modify, the trial court changed its ground for denying the motion, stating: “And I am convinced that under the clear reading of 551-206(C), that this is the court that makes the call even without considering home state jurisdiction because of the specific coverage of simultaneous proceedings. There was no simultaneous proceeding at the time that this one was filed.”

¶ 9 The trial court found that there was no simultaneous proceeding occurring in Michigan. 43 O.S. Supp.1998 § 551-206. Subsection C was read out of context. The complete section provides:

A. Except as otherwise provided in Section 16 of this act, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced • in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 19 of this act.
B. Except as otherwise provided in Section 16 of this act, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 21 of this act. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this act does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
C. In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
1. Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
2. Enjoin the parties from continuing with the proceeding for enforcement; or
3. Proceed with the' modification under conditions it considers appropriate.

¶ 10 Under both subsections A and B, an Oklahoma court is denied jurisdiction if a proceeding concerning custody has been commenced in another state having jurisdiction substantially in conformity with the UC-CJEA. Michigan adopted the UCCJEA effective April 1, 2002. Prior to that, Michigan followed the Uniform Child Custody Jurisdiction Act (effective 3/31/76)(UCCJA). We hold that the jurisdictional provisions of the UCCJA are in substantial conformity with UCCJEA. The Comment to Title 2 of the with respect to subsection (c), UCCJEA, states:

Subsection (c) concerns the problem of simultaneous proceedings in the State with modification jurisdiction and enforcement proceedings under Article 3. This section authorizes the court with exclusive, continuing jurisdiction to stay the modification proceeding pending the outcome of the enforcement proceeding, to enjoin the parties from continuing with the enforcement proceeding, or to continue the modification proceeding under such conditions as it determines are appropriate.

¶ 11 Subsection C applies to the state which has exclusive, continuing jurisdiction. That state is Michigan, not Oklahoma. To read subsection C' as the trial court did here would allow any state to proceed with a motion to modify, notwithstanding the fact that another court has exclusive continuing jurisdiction, a result which is directly at odds with the purpose of the UCCJEA.

¶ 12 The Oklahoma court did not have jurisdiction to modify the Michigan child custody order. We therefore REVERSE and VACATE the order on the ground that the court did not have jurisdiction to consider the Motion to Modify, and further vacate any orders based on or stemming from that order, including the orders assessing child support and allowing attorney fees and costs to Mother.

REVERSED.

JOPLIN, V.C.J. and JONES, J., concur.

      . The record reveals that Tammy Kimes, now Rector, had remarried.

      . Father specifically raises the following propositions of error: 1) Oklahoma does not have jurisdiction to modify the prior Michigan order; 2) the Oklahoma court erroneously relied on the "simultaneous proceeding” section of the UC-CJEA; 3) the Oklahoma court did not have jurisdiction to issue a child support order; 4) the Oklahoma court abused its discretion in awarding attorney fees to Mother; 5) the Oklahoma court lacked jurisdiction to require Father to submit to its jurisdiction; and 6) the Oklahoma court did not have grounds to require a performance bond. Because we hold that Oklahoma erroneously assumed jurisdiction, we need not address all of these allegations of error.

      .43 O.S. § 551-202:
      A. Except as otherwise provided in Section 16 [43 O.S. § 551-204] of this act, a court of this state which has made a child custody determination consistent with Section 13 or 15 [43 O.S. § 551-201 or 551-203] (jurisdiction to make initial child custody determination or jurisdiction to modify a child custody determination) has exclusive, continuing jurisdiction over the determination until:
      1. A court of this state determines that neither the child, the child and one parent, nor the child and a persona acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this concerning the child’s care, protection, training, and personal relationships; or
      2. A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent to not presently reside in this state.
      B. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 13 [43 O.S. § 551-201 (initial custody proceeding) ] of this act.

      . Title 43, § 551-204.

      . Title 43, § 551-201 etseq.

      . Title 43, § 551-101 etseq.

      . Title 43, § 551-207.

      . Title 43, § 551-209.


text:
    2002 OK CIV APP 123
    Tracy A. CINOCCA, Plaintiff/Appellee, v. ORCRIST, INC. d/b/a Austin Consultant Group, Defendant/Appellant, and Robert Lee Rainey, Defendant.
    No. 97,388.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 27, 2002.
    Tracy A. Cinocca, Cinocca & Associates, Tulsa, OK, Pro se.
    Joseph C. Schubert, Oklahoma City, OK, for Defendant/Appellant.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Appellant, Orcrist, Inc. (Orcrist), brings this appeal from the trial court’s denial of its Motion to Compel Arbitration.

¶ 2 The issue of arbitration in this matter arises from a February 16, 2000 “Separation Agreement” (the Agreement) executed by Appellee, Tracy A. Cinocca (Cinocca), and Defendant, Robert Lee Rainey (Rainey). The Agreement documents the terms of Ci-nocca’s “termination by mutual agreement” from the law firm (the Association) where she had been an associate. Rainey signed individually and for the Association. The Agreement provides, inter alia:

... The Association and the Associate agree that all disputes, controversies, or claims arising under or relating to this Agreement, shall be promptly resolved exclusively by binding arbitration, ...

¶ 3 Cinocca initiated this action against Orcrist in January 2001. She alleged, generally, that Orcrist, who had provided computer consultant services on her computers, “[o]n February 16, 2000, ... deleted or caused to be deleted and copied, numerous programs, drivers, settings, configurations and data from [Cinocca’s] Personal Office Computer at the request and instigation of a co-worker for whom [Cinocca] was an independent contractor.” The record reflects Orcrist’s technician, at the direction of Rainey, did delete some software from Cinocca’s personal computer while it was still on the Association’s premises, and took other action with the computer to bar Cinocca’s access to the Association’s computer network.

¶4 Cinocca’s Petition further alleged she sustained damages, [1] for loss of computer services and software, [2] to return the computer back to its condition before the alleged unauthorized activities, [3] for loss of computer use for three months, and [4] lost wages. Cinoeca asserted claims for breach of express warranty, negligence, and fraudulent misrepresentation.

¶ 5 Orcrist moved to dismiss Cinocca’s Petition, or in the alternative to stay the litigation and require Cinocca to pursue her claims in binding arbitration under the Agreement. Orcrist argued the Petition should be dismissed because Cinocca either failed to plead material elements of the claims or specifically plead the allegations of fraudulent misrepresentation.

¶ 6 Orcrist contended even if Cinoeca was allowed to amend her claims, those claims should still be dismissed because it was acting as the known agent of Rainey and at his direction and control when it was involved in the acts alleged. Orcrist additionally contended that if Cinocca was allowed to proceed against it, she must do so in binding arbitration because it is a third party beneficiary under the agreement.

¶ 7 Cinocca filed an objection to Orcrist’s motion to dismiss or stay, arguing her Petition was sufficient as a matter of law. She nonetheless filed an accompanying Motion to amend her Petition to cure the alleged deficiencies. She also moved for summary judgment on the basis there was no dispute as to the material facts regarding liability. She argued [a] the Agreement was inapplicable as to Orcrist, but even if found binding, was unenforceable because she was fraudulently induced to sign it, and [b] the allegations of fraud in the inducement must be resolved before the trial court could either dismiss the case or compel arbitration.

¶ 8 Orcrist subsequently conceded Cinoc-ca’s Amended Petition cured its assertions as to sufficiency and that the claims should not be dismissed, nor should summary judgment be granted it on the agency theory. Orcrist did, however, persist in its assertion the litigation must be ordered to arbitration because it was entitled to enforce the Agreement’s arbitration provision. Orcrist continued to argue Cinocca’s claims based on purported violations of the Oklahoma Computer Crimes Act, 21 O.S.1991 §§ 1951 et seq., must be dismissed because there was no showing of criminal conviction as required before civil liability attaches under that act.

¶ 9 Orcrist then filed a Motion to Compel Arbitration. In that motion Orcrist argued Cinocca should be equitably estopped from asserting fraudulent inducement, but if the court deemed a fact question existed as to that issue, a hearing should be held on its merits before the litigation proceeded further. The trial court denied this motion and granted Cinocca’s motion to join Rainey.

¶ 10 Cinocca amended her Petition to add Rainey as a defendant to include claims of fraudulent misrepresentation and deceit, invasion of privacy and tortious interference with her contractual relationship with Or-crist. In his Answer, Rainey asserted, among other things; that Cinocca’s claims were subject to binding arbitration. Rainey also asserted counter-claims against Cinocca for breach of contract, conversion and fraud, constructive fraud, misrepresentations and deceit.

¶ 11 Rainey and Orcrist filed a Joint and Several Motion to Compel Arbitration. The arguments and authorities in support of this motion were substantially reiterations of those previously propounded by Orcrist in its earlier Motion to Compel Arbitration. Ci-nocca responded that the trial court had previously denied Orcrist’s Motion to Compel Arbitration and should do so again on this motion. She again contended she was fraudulently induced into executing the Agreement and that the arbitration clause should therefore not be enforceable as to any claims she has against Orcrist or Rainey.

¶ 12 The trial court again denied Orcrist’s Motion to Compel Arbitration. From the bench, the trial court stated the Agreement “still doesn’t apply to [Orcrist]”. In the same order denying Orcrist’s motion, the court also ruled it would set a date to hear Cinocca’s defense of fraudulent inducement “for a final determination of [Rainey’s] Motion to Compel Arbitration.” Orcrist brings its appeal from that order.

¶ 13 Orcrist asserts several theories under which it contends it is entitled, pursuant to the Agreement, to arbitrate Cinocca’s claims. We find it is so entitled in accordance with the doctrine of equitable estoppel. We therefore need not determine if Orcrist was entitled to compel arbitration of Cinocca’s claims under the other asserted theories.

¶ 14 The initial inquiry is whether the dispute here at issue is within the scope of the arbitration clause of the Agreement. Pierman v. Green Tree Financial Serv., 1997 OK CIV APP 2, 933 P.2d 955. We find that it is. The Agreement provides Cinocca will immediately return to the Association “all information and materials relating to the Association’s trade secrets, confidential and proprietary information of a special and unique value”, relating to such matters as, but limited to, “programs, software, systems, procedures, ...”. She also agreed to return, among other things, “computer access codes, computer disks, ..., which [Cinocca] received ... in connection with her services performed with Association.”

¶ 15 Cinocca concedes her personal computer in controversy, which she used in her office for Association work, contained items to be returned to Association in accordance with the Agreement. She states in her appellate brief that on her last day at work she repeatedly telephoned Orcrist “to perform their services [on her computer] in her presence so that disputes over work product between her and Rainey could be addressed to everyone’s satisfaction.”

If 16 Cinocca’s complaint is thus not that Rainey, acting for the Association, had no right under the Agreement to retrieve Association’s materials from her computer, but that he, and Orcrist at his direction, acted improperly in doing so. As noted above, the arbitration clause provides that “all disputes, controversies, or claims arising under or relating to this Agreement, shall be promptly resolved by binding arbitration.” (Emphasis added). The claims and controversies here, at a minimum, relate to the rights and obligations arising under the Agreement, i.e., Cinocca’s duties, and Association’s rights, regarding computer related items. The dispute is within the scope of the Agreement. Pierman v. Green Tree Financial Serv., 933 P.2d at 956.

¶ 17 Cinocca contends, and the trial court found, Orcrist may not compel arbitration because it is not a signatory to the Agreement. We do not agree. Our Oklahoma appellate courts have not addressed this question, but we are persuaded by the reasoning of other courts who have, particularly the Federal bench. In MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999), the Circuit Court of Appeals held there are certain exceptions to the rule that arbitration rights are generally predicated on an express decision to waive the right to trial in a judicial forum. Among those exceptions, and offered here by Orcrist, are agency, third party beneficiary, and equitable estop-pel. As stated above, because we find equitable estoppel applicable, we render no decision as to the other theories.

¶ 18 The Franklin Court further held equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. The first is where the signatory must rely on the written agreement in asserting its claims against the nonsignatory. That is not the case here. The second circumstance is when the signatory raises allegations of substantially interdependent and concerted misconduct by both the nonsigna-tory and another signatory. That is the case here.

¶ 19 In her Third Amended Petition, Ci-nocca alleged “[Orcrist] and Rainey knew they did not have permission to access her computer without her presence and Plaintiff communicated this to them and/or Rainey represented falsely that access would occur in Plaintiffs presence.” She further alleged, “[t]he Unauthorized and Illegal Acts complained of by Plaintiff constitute the basis of this Litigation and were requested and performed at the direction of Rainey without Plaintiffs consent.”

¶ 20 Cinocca’s claims in her Third Amended Petition include, “[Orcrist’s] and Rainey’s Fraudulent Misrepresentation and Deceit”, “[Orcrist] and Rainey Invaded Plaintiffs Privacy”, “[Orcrist] and Rainey Converted Plaintiffs Computer to their own Personal Use and Enjoyment”, and “[Orcrist] and Rai-ney Intentionally or Recklessly Inflicted Emotional Distress”.

¶ 21 As in Franklin, it is clear Cinocca’s claims against Orcrist and Rainey are “inherently inseparable.” Where claims against the nonsignatory and the signatory are so “intertwined”, application of equitable estop-pel is warranted. Otherwise, arbitration proceedings between the signatories “would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.” Franklin, at 947. Oklahoma has enunciated a similar policy favoring arbitration statutes. Rollings v. Thermodyne Industries, Inc., 1996 OK 6, 910 P.2d 1030.

¶22 The Fifth Circuit Court of Appeals addressed application of equitable estoppel to cases involving nonsignatories in Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir.), cert.denied 531 U.S. 1013, 121 S.Ct. 570, 148 L.Ed.2d 488 (2000). The Court found that in instances of alleged “interdependent and concerted misconduct” the signatory, in essence, becomes a party, with resulting loss, among other things, of time and money because it requires participation in the court proceedings. The Grigson Court further found concomitant detrimental reliance on the part of the signatory because the signatory-plaintiff is seeking to avoid the agreement to use generally less expensive arbitration by bringing the action against a nonsignatory charged with intertwined conduct.

¶ 23 Finally, we find no need to consider the merits of Cinocca’s fraudulent inducement/duress claim. Generally, allegations of fraud in the inducement of an agreement must be resolved by the court prior to either compelling arbitration or dismissing the case. Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910. Cinocca raised the issue below, and the trial court ruled it would set a date for a hearing.

¶ 24 However, a hearing on Cinocca’s defense of fraudulent inducement was precluded by Cinocca and Rainey mutually dismissing their claims against each other “in favor of pursuing arbitration pursuant to the Separation Agreement.” By agreeing to mutually dismiss and arbitrate the respective claims prior to the trial court’s hearing on fraudulent inducement, Cinocca voluntarily withdrew the issue and waived her right to have it decided in litigation. See, Guinn v. Church of Christ of Collinsville, 1989 OK 8, 775 P.2d 766. (A waiver is the voluntary or intentional relinquishment of a known right.)

¶ 25 The trial court’s order is REVERSED and this matter is REMANDED with instructions to the trial court to issue an order compelling Cinocca to arbitrate her claims against Orcrist.

¶ 26 Cinocca’s Motion to Dismiss Appeal is DENIED.

ADAMS, J., and MITCHELL, J., concur.

      . The trial court did dismiss Cinocca’s Oklahoma Computer Crimes Act claims without prejudice. Although Cinocca continues to refer to this Act in her appellate brief, these claims are not at issue here.

      . Rainey did not file a Petition in Error and is not a party to this appeal. While this matter was pending review here Cinocca and Rainey mutually agreed to dismiss their respective claims against the other "in favor of pursuing arbitration pursuant to the Separation Agreement ... with prejudice to refiling.”

      . See. also, Via Fone, Inc. v. Western Wireless Corporation, 106 F.Supp.2d 1147 (If the allegations underlying the claims "touch matters” covered by the parties’ sales agreements, then those claims must be arbitrated, whatever the legal labels attached to them.) .


author: JACKSON, Presiding Judge:

text:
    2002 UT App 381
    Diane GARCIA, Respondent and Appellee, v. Amado GARCIA, Petitioner and Appellant.
    No. 20010656-CA.
    Court of Appeals of Utah.
    Nov. 15, 2002.
    Michael F. Olmstead, Ogden, for Petitioner.
    Diane Garcia, La Grande, Oregon, Respondent Pro Se.
    Before JACKSON, P.J., and GREENWOOD and ORME, JJ.
   OPINION

JACKSON, Presiding Judge:

¶ 1 Appellant Amado Garcia appeals the district court’s denial of his motion for summary judgement, which sought termination of alimony to his ex-wife, Appellee Diane Garcia. We reverse and remand.

BACKGROUND

¶ 2 On March 2, 1999, Amado filed a Verified Petition to Modify Decree of Divorce. Diane filed an Answer to the petition, but failed to respond to Amado’s Request for Admissions. Thus, pursuant to rule 36(a) of the Utah Rules of Civil Procedure, Diane admitted the following facts: (1) that “she was acquainted with Kimberly Ellis”; (2) “[t]hat she and Ellis lived together at an address in Seaside, Oregon, from September 19, 1997, to December 1998”; (3) “that she and Ellis shared a bedroom, bed, and had sexual contact at that residence during that period of time”; (4) that she “and Ellis shared the living expenses at that residence during that period of time”; (5) that she “and Ellis shared an address in Cannon Beach, Oregon, from December 1998 to March 1999”; (6) “that she and Ellis shared a bedroom, bed, and had sexual contact at that residence during that period of time”; and (7) that she “and Ellis shared the living expenses at that residence during that period of time.”

¶3 Based on these facts, Amado filed a motion for summary judgment, contending “that Petitioner has admitted a relationship constituting cohabitation, and therefore, the [district court should have] enter[ed] an [o]r-der terminating alimony payments as of August 1997 on the grounds that [Diane] entered into a cohabitation relationship on or about that date.” The district court denied Amado’s motion for summary judgment. It ruled that had Ellis and Diane been of the opposite sex, their conduct would have clearly been viewed as cohabitation sufficient to terminate alimony. However, the court concluded “that the plain meaning of ‘cohabitation’ requires a sexual relationship between members of the opposite sex.” Amado appeals the district court’s denial of his motion for summary judgment.

ISSUE AND STANDARD OF REVIEW

¶4 Amado challenges the district court’s interpretation of “cohabitation” as contained in Utah Code Ann. § 30-3-5(9) (1998). “The trial court’s interpretation of this statute is a question of law that we review for correctness.” Department of Natural Res. v. Huntington-Cleveland Irrigation Co., 2002 UT 75,¶ 12, 52 P.3d 1257. Moreover, “in construing any statute, we first examine the statute’s plain language and resort to other methods of statutory interpretation only if the language is ambiguous.” Gull Lab., Inc. v. State Tax Comm’n, 936 P.2d 1082, 1084 (Utah Ct.App.1997) (internal quotations and citations omitted).

ANALYSIS

¶ 5 Utah Code Ann. § 30-30-5(9) (1998) provides: “Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” In Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct.App.1996), we ruled that “[e]ohabitation is comprised of ... two elements: (1) common residency and (2) sexual contact evidencing a conjugal association.” Id. at 160 n. 1. (citing Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985)). The trial court acknowledged that Diane and Kimberly Ellis met the residency requirement. That conclusion is not challenged on appeal.

¶ 6 Regarding the second element, the trial court concluded that Diane’s “ ‘same sex’ relationship cannot, as a matter of law, amount to ‘cohabitation.’” We disagree. According to the plain language of the statute, alimony terminates “upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(9) (emphasis added). The plain language of the statute requires only that the alimony payee cohabit “with another person,” and contains no requirement that the other person be a member of the opposite sex. Id.; see also In re Marriage of Weisbruch, 304 Ill.App.3d 99, 237 Ill.Dec. 809, 710 N.E.2d 439 (1999) (holding same-sex relationship terminated alimony under applicable statute, which terminated alimony “‘if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.’ ” (Emphasis added) (Quoting 750 ILCS 5/510(c) (West 1996)).); see generally Robin C. Miller, Annotation, Effect of Same-sex Relationship on Right to Spousal Support, 73 A.L.R. 5th 599 (1999). Nor does the test outlined in Pendle-ton and Haddow to determine whether a party was cohabiting require the cohabiting parties to be of the opposite sex. See Haddow, 707 P.2d at 672.

¶ 7 Thus, we conclude that Diane’s admission “that she and Ellis shared a bedroom, bed, and had sexual contact” meets the second element necessary to establish cohabitation. Accordingly, the trial court erroneously concluded “that the plain meaning of ‘cohabitation’ requires a sexual relationship between members of the opposite sex.”

CONCLUSION

¶ 8 The trial court erroneously concluded “that the plain meaning of ‘cohabitation’ requires a sexual relationship between members of the opposite sex.” Thus, we reverse the trial court’s denial of Amado’s motion for summary judgment and remand for proceedings consistent with this opinion.

¶ 9 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . The district court concluded that "had these individuals been of the opposite sex, their conduct would be viewed as 'participating in a relatively permanent sexual relationship akin to that generally existing between husband and wife.’ However, there are substantial legal differences between a man and a woman having common residency and ‘sexual conduct evidencing a conjugal association' and a 'same sex’ common residency and 'sexual conduct evidencing a conjugal association.’ ” (Quoting Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985)). As support for this proposition, the district court only points out that "same sex" couples are not afforded the same legal rights as those of married couples. We fail to see how the differing legal rights of married and same-sex couples necessitates the statutory interpretation that same-sex couples may not have sexual contact as contemplated by Haddow and Pendleton. Moreover, our supreme court has not explained which similarities a "relatively permanent sexual relationship" must have in order to be "akin to that generally existing between husband and wife” for purposes of Utah Code Ann. § 30-3-5(9) (1998). Haddow, 707 P.2d at 672. Thus, we have no basis to assume that opposite sex must be one of those similarities. Accordingly, we cannot conclude, as the district court did, that an alimony payee’s "sexual contact" for purposes of determining cohabitation must be with a member of the opposite sex.