author: OPINION BY KEITH RAPP, JUDGE:

text:
    In re the Marriage of: Heather Marie MORGAN, now Gruenberg, Petitioner/Appellee, v. Mark Ray MORGAN, Respondent/Appellant.
    Case No. 116,503
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED DECEMBER 13, 2018 Mandate Issued: January 30, 2019
    Nancy K. Anderson, Oklahoma City, Oklahoma, for Petitioner/Appellee
    Patrick H. McCord, N. SCOTT JOHNSON & ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, for Respondent/Appellant
   OPINION BY KEITH RAPP, JUDGE:

¶1 Trial court respondent, Mark Ray Morgan, (Father) appeals the trial court's Order for Parental Support of a Disabled Adult Child ordering Father to pay support for his disabled adult son. Father also appeals the trial court's order awarding attorney's fees to Heather Marie Morgan, now Gruenberg (Mother).

BACKGROUND

¶2 Father and Mother were married on June 11, 1994, and had one child, SCM, born August 22, 1998. SCM was born with autism spectrum disorder with speech delay and intellectual disability. The parties divorced on April 12, 2004, and the trial court awarded custody of SCM to Mother, with reasonable visitation to Father. The trial court ordered Father to pay $630.09 per month, which included $557.30 in child support calculated pursuant to the Child Support Guidelines and $72.79 as Father's contribution toward the cost of speech therapy for SCM. The trial court also ordered that Mother would be responsible for 42% and Father 58% of SCM's uncovered medical expenses.

¶3 Father lives out-of-state and has limited interaction with his son, SCM.

¶4 SCM graduated, with accommodations, from Inola High School in Inola, Oklahoma, in May 2016. He turned 18 later that year, on August 22, 2016.

¶5 Prior to SCM's 18th birthday, on May 16, 2016, Mother filed a Motion for Parental Support of a Disabled Child. Mother alleged SCM requires "substantial care and personal supervision and will never be capable of self-support" and that as a result of the care and expenses due to his preexisting disability, the trial court should order Father to pay financial support for SCM pursuant to Title 43 O.S.2011 § 112.1A. Mother requested child support calculated according to the Oklahoma Child Support Guidelines through August 2016, and, beginning in September 2016, support for SCM calculated based on the factors set forth in Title 43 O.S.2001 § 112.1A(E).

¶6 Father filed a Motion to Determine Overpayment on January 30, 2017. Father argued that, under the Decree of Divorce, his child support included an amount of $72.79 per month for speech therapy for SCM. Father alleged SCM ceased receiving speech therapy although Father continued to pay for the therapy. Father also alleged he paid for medical expenses that Mother did not incur. Father asked the trial court to determine the amount of overpayment and to enter a judgment against Mother and in favor of Father in the amount of the alleged overpayment. Father also requested an award of attorney fees and costs.

¶7 In response to Father's request for overpayment, Mother denied Father was entitled to an award for overpayment of child support or medical expenses. Mother alleged the parties mutually agreed that SCM would attend a private reading tutor instead of speech therapy and that Father never complained about contributing to payment for the reading tutor. Mother also alleged SCM quit seeing a reading tutor while in high school, which she also discussed with Father. Father did not request overpayment nor did he ask to recalculate the child support. Mother stated she paid medical expenses for SCM and did not ask Father to contribute payment for those expenses. Mother alleged there was an "understanding between the parties that the [child] support amount would stay the same." Mother also argued that, even after she filed her Motion for Parental Support for a Disabled Child, Father did not complain about the alleged overpayment or request to be reimbursed. Mother asked the trial court to deny Father's request for overpayment and an award of attorney's fees.

¶8 After several continuances, the trial court set this matter for trial on May 15, 2017.

¶9 On April 28, 2017, Father filed a Motion to Dismiss, arguing the trial court should dismiss Mother's Motion for Parental Support for a Disabled Child as there was no cognizable legal theory on which she could prevail. Father argued SCM was "capable of the minimum level of financial self-support." Father also alleged the trial court must consider all the resources available to support SCM, including government financial assistance.

¶10 Father also filed a Motion to Recuse on April 28, 2017, asking the trial court to order Mother's counsel to disqualify himself from representation of Mother because he represented Father's current wife in an unrelated matter approximately ten years previously.

¶11 The trial court entered a Minute Order on May 4, 2017, denying Father's Motion to Dismiss and Motion to Recuse. The trial court stated the trial remained set for May 15, 2017.

¶12 Father subsequently issued a subpoena to SCM at his current place of employment, Rogers State University. Mother filed a Motion to Quash Subpoena, arguing SCM was not subject to service of process or subpoena because he was the subject of a guardianship proceeding.

¶13 The trial court conducted a two-day trial beginning on May 15, 2017, and concluding on July 31, 2017. At trial, Mother presented several physicians and developmental experts to testify concerning SCM's cognitive limitations. Dr. Pamela A. Jarrett, SCM's pediatrician, testified SCM was diagnosed with Autistic Spectrum Disorder with Aspergers Characteristics and ADHD when he was eight years old, in May 2006. She stated that SCM has limited cognitive abilities and that the diagnosis is permanent and not expected to change. She also testified that SCM has an IQ of a third or fourth grader. She stated SCM needs a limited legal guardian to help with certain decisions and a job coach to assist with employment. Concerning employment, Dr. Jarrett testified SCM would require close supervision and he would require a limited job scope. She also stated he would not be able to solely provide for his daily living cost and care. In addition, she testified that SCM suffers from anxiety and should not be alone at home for more than one to two hours a day. She also stated that he should not drive.

¶14 Stefani L. Northcutt, a psychometrist that specializes in special education testing, such as IQ and achievement testing, testified SCM tested at below to well below average.

¶15 Dr. Cynthia Jean Fuller, a developmental pediatrician and one of SCM's previous pediatricians, also testified concerning SCM's cognitive disabilities and ability to be employed. Dr. Fuller testified that SCM needs financial assistance because the type of job he is able to perform will not pay a livable wage. She stated SCM currently cleans tables at the cafeteria at Rogers State University and needs assistance to keep him on task. She opined that his overall function is that of a seven or eight year old. She also opined he was unable to function independently for activities of everyday life and currently functions at the level of a fourth grader.

¶16 Mother also presented the testimony of Pamela Meyer, SCM's supervisor at Rogers State University. Ms. Meyer testified SCM's job responsibilities include cleaning the tables and wiping down and refilling salt/pepper shakers. SCM needs constant supervision and needs a job coach to keep him on task. She said she had to move SCM to six hours a day because he was unable to handle working eight hours a day. Ms. Meyer testified SCM is paid $8.75 per hour, but is not paid during breaks, such as spring break, fall break, or summer break.

¶17 Mother also testified at the trial. Mother testified SCM made $4,000 in income in 2016 and introduced supporting documentation. Mother testified SCM might make approximately $10,000 in 2017. She stated SCM's income is used to pay for his I-pad, Disney channel, and other entertainment expenses, but does not pay for the essential overhead costs. She also stated she does not seek unemployment for SCM when he is laid off during the summer because SCM is unable to look for employment, which is a requirement to obtain unemployment. Mother also testified that she has not applied for government financial assistance because she was told it would probably be denied. She also testified she believes SCM is her and Father's responsibility, not the government's responsibility. Mother stated SCM is unable to live independently.

¶18 In addition, Mother testified she covers SCM on her insurance so she has not looked into Sooner Care. She stated SCM turned eighteen on August 22, 2016, and Father's last support payment was on August 15, 2016. Concerning the speech therapist costs that ceased, Mother testified she and Father agreed that SCM would meet with a reading tutor after he quit seeing the speech therapist and that Father's $72.79 payment would be applied to the reading tutor. She said that, after SCM quit seeing the reading tutor, the parents verbally decided child support would be increased if they returned to court so they left the child support as originally ordered.

¶19 After the close of Mother's case, the trial court heard argument on Mother's Motion to Quash Subpoena. SCM was represented by an attorney during this argument. The trial court ruled that he would conduct an in-camera interview of SCM and then rule on the Motion to Quash Subpoena after talking with SCM. After the in-camera interview, the trial court sustained Mother's Motion to Quash Subpoena. The trial court stated:

My interview indicates that [SCM] would not be able to be sworn, would not be able to understand what we are doing here and accurately answer questions. [SCM] was extremely nervous shaking, holding onto stuffed animals that he brought for support, was very scattered in his thoughts. For those reasons the subpoena is hereby quashed and we will proceed with testimony.

¶20 In support of his case, Father presented the testimony of Amy Morgan, his sister. Ms. Morgan testified she does not have an educational background dealing with cognitive disabilities, but has worked in the area. Ms. Morgan stated she thought SCM could live in a group home and that it was possible for him to live independently with training and assistance.

¶21 Father also testified at trial. He stated he did not have any verbal agreement with Mother concerning the funds originally paid for the speech therapist and that he did not discuss the child support with Mother. He opined that SCM's money should be used on necessities, not entertainment, and that SCM needs to learn to live independently. Father also testified he thought Mother should be required to pursue government financial assistance for SCM.

¶22 Father admitted he had not had contact with SCM since he turned eighteen years old and had lost contact with him. Father stated he thought SCM could work full-time and support himself.

¶23 After hearing testimony and reviewing the evidence presented at trial, the trial court denied Father's Motion for Overpayment of Child Support and granted Mother's request for support for SCM. The court held:

Based upon the evidence presented, my review of the exhibits and notes from our beginning of trial and the evidence presented today, Mr. Morgan's Motion for Overpayment of Child Support is denied. Mr. Morgan did not meet his burden in showing that the calculations would be different or lower had they been recalculated.
Further, I find that his testimony related to the services provided for [SCM] to be unreliable based on all of the information presented about the needs of the, at that time, minor child.
Based upon the testimony of both expert and lay witnesses, it's clear that the level of care for [SCM] has not diminished in any way based on his reaching majority. He's an adult by number only.
As a matter of fact, the level of care required by his mother has increased based on him no longer being in public school.
....
[SCM] is an adult child who requires substantial care and personal supervision because of a mental disability, who is not capable of self-support. It's uncontroverted that this disability existed before [SCM's] eighteenth birthday.
Adult child support will be ordered pursuant to the Child Support Guidelines with [Mother] calculated at her testified income amount. Five thousand dollars will be added to her income to account for [SCM]'s income. [Father] will be calculated at his income shown on his 2016 tax return.

The trial court also ordered Father would have three years to pay back the support for the time after the Motion was filed.

¶24 The trial court entered an Order for Parental Support of a Disabled Adult Child, filed on October 5, 2017. The trial court found:

The Court finds that the parties' now-adult child, [SCM], born August 22, 1998, suffers from a mental disability that existed prior to his eighteenth birthday, and as a result of this disability requires substantial care and personal supervision and is not capable of self-support.

¶25 The trial court ordered Father to pay Mother the sum of $649.03 per month, beginning September 1, 2016, as adult child support for [SCM] until further order of the court. The trial court also found Father stopped paying child support following [SCM's] 18th birthday and, therefore, owed past due child support in the amount of $7,788.36. The court ordered Father to repay the arrearage within thirty-six months and to pay $216.34 per month on the judgment, beginning September 1, 2017. The trial court also ordered that Mother shall pay 54% and Father 46% of the reasonable and necessary physical or mental health expenses for [SCM] not covered by insurance or some other third-party coverage. In addition, the trial court denied Father's Motion for Overpayment.

¶26 Mother subsequently filed an Application for Attorney's Fees, which the trial court granted in part. Mother requested attorney's fees in the amount $14,168.41 and the trial court awarded Mother $8,000 in attorney's fees. The trial court held:

1. The Court finds that the delays and complications that arose prior to trial were well beyond those expected, even considering the busy schedules of the trial attorneys and litigants.
2. The Court finds that [Father's] conduct created additional attorney fees for [Mother].
3. The court grants, in part, the Petitioner's Application for Attorney Fees. The Court awards [Mother] the sum of $8,000.00 and hereby enters a judgment in favor of the Petitioner against the Respondent in the amount of $8,000.00, all over the Respondent's objection.

¶27 Father appeals both the trial court's Order for Parental Support of a Disabled Adult Child and Order on Petitioner's Application for Attorney Fees.

STANDARD OF REVIEW

¶28 Matters relating to child support are addressed to the sound legal discretion of the trial court and will not be reversed absent a showing of abuse of discretion or that the decision is clearly contrary to the weight of the evidence. Merritt v. Merritt , 2003 OK 68, ¶ 7, 73 P.3d 878, 882 (citations omitted).

¶29 "The question of whether an award of attorney's fees is authorized presents a question of law, subject to de novo review on appeal." Hall v. Dearmon , 2015 OK CIV APP 40, ¶ 11, 348 P.3d 1107, 1109. The reasonableness of the trial court's award of attorney's fees is reviewed for abuse of discretion. Id . This Court will not disturb an attorney's fee award unless the appellate court finds the trial court made a clearly erroneous conclusion and judgment against reason and evidence. Green Bay Packaging, Inc. v. Preferred Packaging, Inc ., 1996 OK 121, ¶ 32, 932 P.2d 1091, 1097.

ANALYSIS

¶30 Father first argues the trial court did not have subject matter jurisdiction over Mother's request for financial support for SCM due to the pendency of the guardianship action involving SCM and, therefore, erred as a matter of law by not declining jurisdiction in the support action.

¶31 Father argues the trial court did not have jurisdiction to decide the financial support issue, relying on Title 30 O.S.2011 § 1-113. Section 1-113 provides:

A. A guardian of the person or property, or both, of a person residing in this state, who is a minor, or an incapacitated or partially incapacitated person, 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; and
2. how the estate of the ward shall be managed, expended, or distributed to or for the use of the ward or the dependents of the ward.

(Emphasis added.) Father focuses his argument on the emphasized language above, arguing the action for financial support was an action concerning the estate of the ward and how the estate would be "managed, expended, or distributed to or for the use of the ward" and, therefore, the guardianship court had jurisdiction, not the trial court here.

¶32 This Court does not agree. The current support action is not one "pertaining to the guardianship of a ward" and does not involve how the ward's estate shall be managed, expended, or distributed to or for the ward's use. Furthermore, Father's interpretation is in conflict with the language of Title 43 O.S.2011 § 112.1A , that provides for the support of an adult child with disabilities. Section 112.1A provides in part:

2. A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is eighteen (18) years of age or older to receive the support directly.
C. 1. A suit provided by this section may be filed only by:
a. a parent of the child or another person having physical custody or guardianship of the child under a court order, or
b. the child if the child:
(1) is eighteen (18) years of age or older,
(2) does not have a mental disability, and
(3) is determined by the court to be capable of managing the child's financial affairs.

(Emphasis added.) The express language of Section 112.1A reflects the Legislature's intent that a person having guardianship of an adult child with disabilities be able to bring an action for support.

¶33 This Court finds that under the facts and applicable law, the trial court did not err in finding it had subject matter jurisdiction to decide this matter.

¶34 Father next argues he was denied due process of law by the trial court's decision to quash Father's subpoena for SCM to testify. Father argues he was unable to fully present his case because he was unable to call SCM as a witness.

¶35 The determination of the competency of a witness to testify is a matter for the trial court's discretion. "[I]t is the province of the trial court to determine the witness' competency, and its decision will not be reviewed unless there is a clear abuse of discretion." Missouri-Kansas-Texas Railroad Co. v. Embrey , 1934 OK 238, ¶ 6, 168 Okla. 433, 33 P.2d 481, 483 (citing Adams v. State , 1911 OK CR 87, 5 Okla.Crim. 347, 114 P. 347 ).

¶36 Here, the trial court examined SCM in camera and determined SCM was unable "to be sworn, would not be able to understand what we are doing here and accurately answer questions." After examining SCM and considering the previous testimony about SCM's cognitive disability and limitations, the trial court determined SCM was unable to understand and participate in the proceedings. This Court, based on the evidence presented at the trial, finds the trial court did not abuse its discretion in granting Mother's motion to quash the subpoena of SCM.

¶37 Father next argues the trial court erred in its award of post-majority support for SCM, a disabled adult child. Father argues the trial court erred in using the Oklahoma Child Support Guidelines to calculate support for SCM under Title 43 O.S.2011 § 112.1A. Father also contends the trial court was required to consider whether SCM was eligible for government financial assistance to reduce or eliminate Father's support obligation under Section 112.1A.

¶38 Thus, the issue here presented is whether the Oklahoma Child Support Guidelines should be used to calculate financial support for an adult child with disabilities under Title 43 O.S.2001 § 112.1A. This Court responds in the negative for the reasons set out herein.

¶39 Section 112.1A(E) provides the basis for determining child support for an adult child with disabilities. Section 112.1A(E) sets forth the factors the trial court must consider in determining support:

E. In determining the amount of support to be paid after a child's eighteenth birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special consideration to:
1. Any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
2. Whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
3. The financial resources available to both parents for the support, care, and supervision of the adult child; and
4. Any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.
F. An order provided by this section may contain provisions governing the rights and duties of both parents with respect to the support of the child and may be modified or enforced in the same manner as any other order provided by this title.

¶40 Although this Court has not found an Oklahoma Supreme Court case addressing this issue, this Court addressed the issue in an unpublished opinion In re Marriage of Rooney , Case No. 109,481 (December 19, 2012)(cert. denied). This Court finds the analysis in Rooney instructive. In Rooney , the Court of Civil Appeals compared the statutes dealing with child support for a minor child and Title 43 O.S.2001 § 112.1A, the statute dealing with support of an adult child with disabilities in determining whether to use the Child Support Guidelines to calculate support for an adult child with disabilities. The Rooney Court stated:

The question presented is whether a decision as to the level of parental support of adult children with disabilities pursuant to § 112.1A is an award of "child support" subject to the calculation provisions of 43 O.S. 118 and 12 O.S. 118D (2001). We find it is not.
Section 43 O.S. 112.1(A) allows suit for such an award of adult support "regardless of the age of the child ..," while the child support statute, 43 O.S. 112 (2011) mandates provision for the support of "minor children" ("If there are minor children of the marriage, the court ... [s]hall make provision for guardianship, custody, medical care, support and education of the children...."). Further, 43 O.S. 118D is clear that base child support is based primarily upon a percentage of the combined gross income of both parents, and the number of supported children. Conversely, 43 O.S. 112.1A focuses on the specific needs of the adult child and who is caring for the child. Similarly, 43 O.S. 118B (2011) dictates that government disability benefits are not normally considered in calculating child support, while 43 O.S. 112.1A requires an assessment of "[a]ny other financial resources or other resources or programs available for the support, care, and supervision of the adult child."
Finally, the needs of children in general are clearly uniform enough that the state may generalize their support needs into a series of guidelines. By comparison, the needs of a disabled adult child are highly individualistic to that child. Section 43 O.S. 112.1A therefore concentrates on the "existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability." Such a standard clearly contemplates a more individualized inquiry into the needs of a specific child than a guideline-based approach centering on income. If the legislature intended support for an adult disabled child to be treated identically to minor child support, it would not have enacted a separate statute with substantially different requirements. We find the Child Support Guidelines are not the basis for the calculation of support for an adult disabled child .

(Emphasis added.)

¶41 As discussed in Rooney , the Legislature enacted Section 112.1A to provide the trial court a means to determine financial support for a post-majority child with disabilities that has specific, individualized needs. The standard under Section 112.1A(E) requires a more individualized inquiry into the needs of an adult child with disabilities. Section 112.1A is not susceptible to a generalized formula, such as the Child Support Guidelines, to calculate support for a person who has medical or psychological needs unique to that person. Unlike the general Child Support Guidelines, under Section 112.1A, the court must consider the factors set forth in Section 112.1A(E) in determining the amount of support required to meet the individualized needs of a post-majority child with disabilities. This consideration may exceed, or be less than, the generalized calculation based on the Child Support Guidelines depending upon the specific long-term medical or psychological needs of the child.

¶42 However, Section 112.1A does not preclude the trial court from using the Child Support Guidelines to assist in determining the relative financial responsibility of each parent for the child's needs as determined based on the Section 112.1A factors. Thus, after considering the factors stated in Section 112.1A and determining the amount of support needed for the care of the post-majority child with disabilities pursuant to Section 112.1A, the trial court may utilize the Child Support Guidelines to assist in determining the financial resources of each parent and to allocate to each parent their percentage of the support as determined under Section 112.1A needed to meet the needs of the post-majority child with disabilities.

¶43 This Court finds the trial court here erred in calculating support for SCM based solely on the Oklahoma Child Support Guidelines. The trial court decision in this matter is reversed and remanded to the trial court. The trial court, on remand, is instructed to consider the Section 112.1A factors in determining the amount of support needed for SCM. The trial court may utilize the Oklahoma Child Support Guidelines to assist in determining the percentage of the determined support under Section 112.1A for which each parent is responsible.

¶44 In relation to the child support issue, Father also argues the trial court erred in not considering all of SCM's income from his employment when determining support. At trial, Mother presented evidence that SCM made $4,000 in 2016 and maybe $8,000 to $10,000 in 2017. Father did not present any evidence to contradict this evidence. The trial court allocated $5,000 of SCM's income to Mother's available income in computing support for SCM.

¶45 Section 112.1A provides the trial court shall consider "[a]ny other financial resources ... available for the support, care, and supervision of the adult child." Here, the trial court was presented with a definite amount of income for SCM for 2016 and a possible income amount for 2017. The trial court set SCM's income at $5,000, which was within the range of evidence presented to the trial court. This Court finds the trial court determination of income for SCM was not error. However, the trial court did err in its application of SCM's total income by attributing SCM's income to Mother. On remand, the trial court is instructed that SCM's income should be considered in the analysis of the Section 112.1A factors when determining the amount of SCM's support.

¶46 In addition, Father argues Mother is required to seek government financial assistance for SCM under Section 112.1A and the trial court must consider this assistance in making the support determination. It should be noted that the specific language of Section 112.1A does not mandate that Mother seek and obtain government financial assistance for SCM. Moreover, there is a question about whether Mother would qualify for any such assistance that is based on a means test. Thus, this Court finds this argument to be without merit.

¶47 Next, Father argues the trial court erred as a matter of law by retroactively establishing support for SCM and awarding Mother an arrearage for child support from the date Father ceased paying child support. Father alleges there is no legal authority for a retroactive application of a support obligation imposed per Title 43 O.S.2001 § 112.1A.

¶48 In response, Mother couches her action as a modification of the original child support award and contends the trial court correctly awarded an arrearage for payment of back adult child support. Mother relies on Section 112.1A(D)(3), which provides "[i]f there is a court of continuing, exclusive jurisdiction, an action under this section may be filed as a suit for modification pursuant to Section 115 of this title." Section 115 provides that an income assignment shall be contained in every child support order. Mother argues "[I]t is possible that subsection 112.1A(D)(3) should refer to 43 O.S. § 118I, regarding modification of child support orders, instead of § 115." Title 43 O.S.2001 § 118I(A)(3) provides that a modification order is effective upon the date the motion is filed.

¶49 The Legislature specifically provided in Section 118I(A)(3) that an order modifying child support of a minor child is effective the date the motion to modify is filed. However, the Legislature did not extend the retroactive application to Section 112.1A, the statute providing for support for an adult child with disabilities.

¶50 This Court cannot speculate as to why the Legislature made special arrangements for an income assignment in a support action involving an adult child with disabilities, but failed to provide that a motion for adult child support relates back to the date the applicant filed the motion. Nor can this Court speculate as to what the Legislature meant to do. However, this Court is bound by the statutory language drafted by the Legislature. Based on the express language of Section 112.1A, this Court finds the trial court erred in awarding Mother a judgment for past due support for SCM. The trial court's judgment for past due child support in the amount of $7,788.36 is vacated.

¶51 Next, Father argues the trial court erred in denying his Motion to Determine Overpayment, claiming he was entitled to a credit for his alleged overpayment of support after SCM ceased receiving speech therapy and tutoring. Father claims he is entitled to a credit of $2,984.39.

¶52 In denying Father's request for overpayment, the trial court held that Father did not sustain his burden of proof. The trial court further found "the [Father's] testimony to be unreliable based upon the testimony and evidence presented regarding [SCM's] needs."

¶53 The trial court acts as the sole judge of the witnesses' credibility and the weight to be given their testimony and evidence. Brown v. Brown , 1993 OK CIV APP 142, ¶ 3, 867 P.2d 477, 479. Here, the trial court considered the conflicting evidence and made its decision according to its assessment of the credibility of the witnesses and the evidence. This Court will give deference to the trial court's conclusions concerning the witnesses and the evidence because it is in the best position to evaluate the witnesses' demeanor and to gauge the credibility of the evidence. Beale v. Beale , 2003 OK CIV APP 90, ¶ 6, 78 P.3d 973, 975.

¶54 This Court, based on the evidence presented in this case, finds no error in the trial court's denial of Father's Motion to Determine Overpayment.

¶55 Father also argues the trial court erred in awarding support for SCM pursuant to 43 O.S.2011 § 112.1A to Mother. Father claims Mother failed to meet her burden of proof under Section 112.1A and, therefore, the trial court's decision is against the clear weight of the evidence.

¶56 Here, Mother presented evidence relating to the four factors set forth in Section 112.1A(E). Mother testified SCM is covered on her insurance and the monthly costs are: health-$286, dental-$29.26, and vision-$6.19, for a total of $321.45. Mother also presented her Exhibit 15-an itemized monthly list of expenses for SCM of $2,322.24 (including insurance costs). In addition, Mother presented both expert and lay testimony regarding SCM's existing and future needs relating to his mental disabilities, including testimony of SCM's inability to care for himself and the unlikelihood of SCM ever being able to live alone. Mother also presented testimony from SCM's supervisor concerning his ability to work and his income from working. The trial court also heard testimony concerning both Mother and Father's income.

¶57 Father presented limited evidence concerning the Section 112.1A factors. In fact, Father did not present any evidence to refute Mother's evidence regarding SCM's monthly expenses and he presented limited evidence regarding SCM's ability to be self-sufficient.

¶58 As previously discussed, the trial court is the sole arbiter of the witnesses' credibility and the weight to be given to their testimony and credibility. Thus, this Court finds the trial court did not err in its decision to award Mother adult child support for SCM pursuant to Title 43 O.S.2001 § 112.1A.

¶59 Father's final argument is the trial court erred in awarding Mother attorney's fees. Father argues there was not a contract or statute allowing an award of attorney's fees and, therefore, the trial court erred in awarding attorney's fees to Mother. In response, Mother contends her Motion for Parental Support was a modification of the original child support award and she is entitled to an attorney's fee award pursuant to Title 43 O.S.2001 § 110(E).

¶60 In Oklahoma, the right of a party to recover attorney's fees is governed by the American Rule. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co ., 2000 OK 55, ¶ 46, 11 P.3d 162, 178-79. The American Rule provides that "courts are without authority to award attorney fees in the absence of a specific statute or a contractual provision allowing the recovery of such fees, with certain exceptions." Id . (citations omitted). These exceptions to the American Rule are narrowly construed. Id . One exception to the American Rule is "that where a litigant has acted in bad faith, wantonly or for an oppressive reason, the trial court, in exercise of its equitable power, may award attorney fees." Christian v. American Home Assur. Co. , 1977 OK 141, ¶ 36, 577 P.2d 899, 906. Whether a litigant comes within this exception is a question for the trial court after presentation of pleadings and evidence. "[T]he inherent equitable power of a court to award attorney fees for abusive litigation practices ... emanated from the inherent authority of courts to manage their affairs so as to achieve the orderly and timely disposition of cases." Barnes v. Oklahoma Farm Bureau Mut. Ins. Co. , 2000 OK 55, ¶ 50, 11 P.3d 162, 180.

¶61 In her request for attorney's fees and costs, Mother alleged:

[Mother] spent 17 months and over $14,000.00 in an effort to secure her son [SCM] the financial support he needs and deserves. The attorney fees [Mother] incurred were exacerbated tremendously by [Father's] unreasonable conduct, unconscionable arguments, frivolous filings, repeated delays, and refusal to sign orders.
....
The Court must then consider the parties' litigation conduct. In reviewing the overall conduct of the litigation, the Court should consider whether either party unnecessarily complicated or delayed the proceedings, or made the subsequent litigation more vexatious than necessary. Unfortunately, [Father's] strategy in this case appears to have been delay at all costs.... [Father] tried to have [Mother's] attorney disqualified by filing a ridiculous "Motion to Recuse" that had absolutely no intelligent or reasonable support. [Father] refused to sign Court orders requiring ongoing litigation to settle the journal entry.

¶62 Here, in its Order on Petitioner's Application for Attorney Fees, the trial court partially granted Mother's request for attorney's fees and costs. The court stated:

1. The Court finds that the delays and complications that arose prior to trial were well beyond those expected, even considering the busy schedules of the trial attorneys and litigants.
2. The Court finds that [Father's] conduct created additional attorney fees for Petitioner.

¶63 The trial court "considered the evidence, the statements and arguments of counsel, the docket sheet, pleadings, and procedural history of this matter" and was familiar with the proceedings and activities involved. After a thorough review of the appellate record, this Court finds the trial court did not err in exercising its equitable power and awarding Mother attorney's fees and costs incurred due to litigation-related misconduct in this action. The trial court's Order on Petitioner's Application for Attorney Fees is affirmed.

CONCLUSION

¶64 Although the trial court did not err in determining Mother is entitled to support for SCM pursuant to Title 43 O.S.2001 § 112.1A, the trial court did err in using only the Oklahoma Child Support Guidelines to calculate the support. The issue of the amount of support owed under Section 112.1A is reversed and remanded to the trial court to calculate support pursuant to the instructions set forth in this Opinion. This Court further finds the trial court erred in awarding Mother a judgment for past due support for SCM and the trial court's judgment for past due child support in the amount of $7,788.36 is vacated. In all other respects, the trial court's Order for Parental Support of a Disabled Adult Child is affirmed. The trial court's Order on Petitioner's Application for Attorney Fees is affirmed.

¶65 AFFIRMED IN PART, REVERSED IN PART AND REMANDED, AND VACATED IN PART .

BARNES, P.J., and GOODMAN, J., concur.

      Transcript, July 31, 2017, p. 9, lines 2-9.

      Transcript, July 31, 2017, pp. 88-89.

      Title 43 O.S.2011 § 112.1A provides:
      A. In this section:
      1. "Adult child" means a child eighteen (18) years of age or older.
      2. "Child" means a son or daughter of any age.
      B. 1. The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:
      a. the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support, and
      b. the disability exists, or the cause of the disability is known to exist, on or before the eighteenth birthday of the child.
      2. A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is eighteen (18) years of age or older to receive the support directly.
      C. 1. A suit provided by this section may be filed only by:
      a. a parent of the child or another person having physical custody or guardianship of the child under a court order, or
      b. the child if the child:
      (1) is eighteen (18) years of age or older,
      (2) does not have a mental disability, and
      (3) is determined by the court to be capable of managing the child's financial affairs.
      2. The parent, the child, if the child is eighteen (18) years of age or older, or other person may not transfer or assign the cause of action to any person, including a governmental or private entity or agency, except for an assignment made to the Title IV-D agency.
      D. 1. A suit under this section may be filed:
      a. regardless of the age of the child, and
      b. as an independent cause of action or joined with any other claim or remedy provided by this title.
      2. If no court has continuing, exclusive jurisdiction of the child, an action under this section may be filed as an original suit.
      3. If there is a court of continuing, exclusive jurisdiction, an action under this section may be filed as a suit for modification pursuant to Section 115 of this title.
      E. In determining the amount of support to be paid after a child's eighteenth birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special consideration to:
      1. Any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
      2. Whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
      3. The financial resources available to both parents for the support, care, and supervision of the adult child; and
      4. Any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.
      F. An order provided by this section may contain provisions governing the rights and duties of both parents with respect to the support of the child and may be modified or enforced in the same manner as any other order provided by this title.

      Father's argument also ignores that "[u]nder the State's constitution, the district court-in all of its division-constitutes an omni-competent, single-level, first-instance tribunal with 'unlimited original jurisdiction over all justiciable matters.' " Broadway Clinic v. Liberty Mut. Ins. Co. , 2006 OK 29, ¶ 25, 139 P.3d 873, 880 (citing Okla. Const. art. 7, § 7(a) ). As this Court in In re Adoption of S.W. , 2002 OK CIV APP 26, ¶ 19, 41 P.3d 1003, 1007-08, elaborated:
      There is only one District Court in Oklahoma. Dockets are established for administrative purposes. 20 O.S. Supp. 2000, 91.2(A). Thus, there is no jurisdictional conflict between divisions or dockets of the District Court.

      Answer Brief of Petitioner/Appellee, filed June 25, 2018, p. 24, n.32.

      Section 118I(A)(3) provides:
      3. An order of modification shall be effective upon the date the motion to modify was filed, unless the parties agree to the contrary or the court makes a specific finding of fact that the material change of circumstance did not occur until a later date.

      Order for Parental Support of a Disabled Adult Child, filed on October 5, 2017, R. 125.

      Father presented testimony from his sister, Amy Morgan, who testified that it was possible for SCM to live independently with training and assistance. Unlike Mother's witnesses, Ms. Morgan has not received a formal education in disabilities/psychological. Instead, she based her assessment on work experience.

      Section 110(E) provides:
      E. The Court may in its discretion make additional orders relative to the expenses of any such subsequent actions ... for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.

      Father did not appeal the reasonableness of the attorney's fee award and, therefore, this issue is waived.


source: Caselaw Access Project

license: Public Domain

text:
    NATIONAL COLLEGIATE STUDENT LOAN, Trust 2007-1, a Delaware Statutory Trust, Plaintiff/Appellee, v. Christopher ESTER, Defendant/Appellant.
    Case No. 116,511
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED: August 31, 2018 Certiorari Denied February 25, 2019 Mandate Issued: March 27, 2019
    Tracy Cotts Reed, Keith A. Daniels, William L. Nixon, Jr., LOVE, BEAL & NIXON, Oklahoma City, Oklahoma, for Plaintiff/Appellee,
    Greggory Thomas Colpitts, Lauren Danielle Colpitts, THE COLPITTS LAW FIRM, Tulsa, Oklahoma, for Defendant/Appellant.
   OPINION BY BRIAN JACK GOREE, VICE-CHIEF JUDGE:

¶ 1 Lender sued Borrower alleging he owed $68,937.40 on an educational loan. The trial court granted Lender's motion for summary judgment. Borrower appeals.

¶ 2 Plaintiff, National Collegiate Student Loan Trust 2007-1, a Delaware Statutory Trust (Lender), sued Defendant, Christopher Ester, (Borrower), alleging Borrower owed $68,937.40 on an educational loan. The trial court granted Lender's motion for summary judgment, finding there is no genuine issue of material fact and concluding that Lender is entitled to judgment as a matter of law.

¶ 3 In its motion for summary judgment, Lender contended that on January 29, 2007, Borrower signed a Non-Negotiable Credit Agreement (the agreement) with Bank of America, N.A. for an educational loan. The agreement was subsequently transferred, sold, and assigned to Plaintiff, National Collegiate Student Loan Trust 2007-1, a Delaware Statutory Trust (Lender). Borrower defaulted on the obligation. Lender pointed out that the agreement specifically stated, "Non-Negotiable Credit Agreement," and also stated that the Uniform Commercial Code (UCC) does not apply. It argued that the agreement is not a negotiable instrument, and the parties specifically agreed therein that the UCC is not controlling.

¶ 4 In his objection to the motion for summary judgment, Borrower argued that Lender lacked standing. He stated that in order to enforce an instrument, the plaintiff has the burden of proving it is a "person entitled to enforce an instrument" by showing it is (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument. Deutsche Bank National Trust Company v. Byrams, 2012 OK 4, ¶ 5, 275 P.3d 129, referencing 12A O.S. 2011 § 3-301. While he admitted that the agreement provides that Article 3 of the UCC does not apply, he nevertheless argues that Lender must demonstrate that it is in possession of the original document, and it has not done that. Borrower claims that Lender has not established that it is the proper plaintiff.

¶ 5 Standing focuses on the party seeking to get his complaint before the court and not on the issues tendered for determination. Knight ex rel. Ellis v. Miller, 2008 OK 81, ¶ 11, 195 P.3d 372. The question is whether the party invoking the court's jurisdiction has a legally cognizable interest in the outcome of the controversy. Id. The burden is on the party invoking a court's jurisdiction to establish standing. Oklahoma Educ. Ass'n v. State ex rel. Oklahoma Legislature, 2007 OK 30, ¶ 7, 158 P.3d 1058. If the plaintiff alleges facts which are sufficient to establish standing, then the case proceeds to the next stage. Id. at ¶ 10.

¶ 6 When a party does not rely on a particular statute or constitutional provision authorizing suit, the question of standing depends on whether the party has alleged a personal stake in the outcome of the controversy. Id, ¶ 16. This is an action for breach of contract. Thus, the question of Lender's standing depends on whether Lender has a personal stake in the outcome of the case.

¶ 7 When standing is challenged in a contract action, the usual issue is whether the party suing is the proper party to bring the action. Here, Bank of America entered into a contract with Borrower. Lender, not Bank of America, filed suit against Borrower. The question is whether Lender is the proper party to sue.

¶ 8 Lender's right to enforce the debt is not governed by the UCC because the agreement is not a negotiable instrument. The agreement specifically provides that it is not governed by Article 3 of the UCC. Thus, standing is not analyzed in the same way as a mortgage foreclosure action where the plaintiff must demonstrate it is the holder of the promissory note or has the rights of a holder. See Deutsche Bank National Trust Co. v. Byrams, supra. In this case, Borrower executed the agreement which provides that Lender may assign the right to payment to another. Lender's petition alleges: (1) Borrower entered into the agreement with Bank of America on January 29, 2007, (2) Bank of America assigned agreement to Lender, (3) Borrower defaulted on the obligations under the agreement, (4) Borrower is indebted to Lender in the amount of $68,937.40. As a threshold legal question, we hold Lender has alleged sufficient facts to establish standing. Oklahoma Educ. Ass'n v. State ex rel. Oklahoma Legislature, 2007 OK 30, ¶ 10, 158 P.3d 1058.

¶ 9 Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e., whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. Tiger v. Verdigris Valley Electric Cooperative, 2016 OK 74, ¶ 13, 410 P.3d 1007. We, like the trial court, will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Ross v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535. Further, all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Id.

¶ 10 Lender attached the agreement to its motion for summary judgment. It provides, in part, "I (Borrower) may not assign this Credit Agreement or any of its benefits or obligations. You (Bank of America) may assign this Credit Agreement at any time." Lender also attached the affidavit of an employee for Transworld Systems Inc. (TSI), the subservicer of Lender and designated custodian of records for Borrower's educational loan. The employee stated he is competent to testify regarding the loan through personal knowledge of the business records maintained by TSI. He also declared Lender became the subsequent assignee of Borrower's loan, and that Borrower owes the principal sum of $68,937.40.

¶ 11 Although Borrower argued that Lender did not own the agreement, he did not attach any evidentiary materials to his response which would have created a genuine issue of material fact concerning Lender's ownership of the agreement.

¶ 12 Because there is no genuine issue of material fact and Lender is entitled to judgment as a matter of law, the trial court did not err in granting Lender's motion for summary judgment.

¶ 13 AFFIRMED.

SWINTON, P.J., and MITCHELL, J., concur.

      The record on appeal includes Borrower's motion to dismiss the petition based on Lender's lack of standing, Lender's response, Borrower's reply, and his supplement to his reply. The trial court did not rule on the motion to dismiss the petition. Therefore, this Court may not address this motion.

      Title 12A O.S. § 3-104(d) states: "A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this article."


text:
    In re MARRIAGE OF DALTON:
    Ashley Hughes Dalton, Petitioner/Appellant, v. Bryan Lee Dalton, Respondent/Appellee.
    Case No. 116,056
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED FEBRUARY 15, 2019 Mandate Issued: April 17, 2019
    Brad K. Cunningham, Conner & Winters, L.L.P., Tulsa, Oklahoma, for Appellant,
    Mark Antinoro, Antinoro Law Firm, P.L.C., Pryor, Oklahoma, for Appellee.
   Opinion by Larry Joplin, Presiding Judge:

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

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

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

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

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

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

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

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

¶ 9 On this issue, and both at the time of filing of Husband's motion to terminate and at the time of trial, § 134(D) of title 43, O.S., provided:

[T]he provisions of any dissolution of marriage decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Modification by the court of any dissolution of marriage decree pertaining to the payment of alimony as support, pursuant to the provisions of this subsection, may extend to the terms of the payments and to the total amount awarded; provided however, such modification shall only have prospective application .

43 O.S. Supp. 2012 § 134(D). (Emphasis added.) In McCoy v. McCoy , 1995 OK CIV APP 38, 892 P.2d 680, the Court of Appeals construed the phrase, "prospective application," as used in this version of § 134(D), as evincing our legislature's intent to limit the authority of an Oklahoma trial court to modify only payments of support alimony which came due after the date of the court's order for modification. McCoy , 1995 OK CIV APP 38, ¶¶ 6-9, 892 P.2d at 681-682.

¶ 10 We believe the Court of Appeals properly interpreted the "prospective application" language of § 134(D) as limiting the trial court's authority to modify only payments of support alimony which come due after the date of the order for modification. At the time of trial in the present case, there remained an accrued arrearage of $30,000.00 due and unpaid for support alimony under the consent decree's schedule of payments. The trial court lacked the authority to modify the terms for payment of those installments which had already accrued at the time of trial.

¶ 11 We are likewise convinced that, notwithstanding the computational error for payment of Husband's support alimony obligation in installments, the consent decree's silence concerning the obligation to pay the $24,000.00 difference between the total support obligation of $225,000.00 and the $201,000.00 total of installments can only be construed to require the payment of the final $24,000.00 in support alimony as due upon completion of the schedule for payment of the expressly provided-for installments. To hold otherwise would impose on the parties a term for the payment of the total support obligation in installments, a matter to which they did not expressly agree. We consequently hold the trial court lacked the authority to direct the payment of the final $24,000.00 in support alimony otherwise than in lump sum.

¶ 12 The order of the trial court providing for Husband's payment of support alimony in installments otherwise than agreed and contrary to the limits of § 134(D) allowing only prospective modification of unaccrued support alimony is consequently REVERSED and the cause REMANDED for entry of an order consistent with this opinion.

GOREE, C.J., and BUETTNER, J., concur.


text:
    CENTRAL OREGON LANDWATCH v. DESCHUTES COUNTY et al
    A168842
    Court of Appeals of Oregon.
    December 5, 2018
    Affirmed without opinion.


author: HARRIS, Judge:

text:
    STATE of Utah, Appellee, v. Gregory Emmanuel WILLIAMS, Appellant.
    No. 20160483-CA
    Court of Appeals of Utah.
    Filed September 13, 2018
    Alexandra S. McCallum and Lance L. Talakai, Attorneys for Appellant
    Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.
    Opinion
   HARRIS, Judge:

¶1 After Gregory Emmanuel Williams pled guilty to three separate property crimes, the district court sentenced him to prison. He appeals his sentence, arguing that one of his convictions was improperly enhanced from a misdemeanor to a felony, and that the court violated Williams's rights against double jeopardy and abused its discretion by sentencing him to prison on the other two convictions. We agree with Williams that the sentence on his first conviction was improperly enhanced, and therefore vacate the district court's sentencing order on that count and remand for resentencing. We affirm Williams's sentence on his other two convictions.

BACKGROUND

¶2 In 2014, Williams broke into a vehicle in a parking garage and stole property from the vehicle. Williams's actions were captured by a surveillance camera, and law enforcement officers later apprehended Williams with the stolen property in his possession. After being charged with multiple offenses, Williams pled guilty to a single charge: burglary of a vehicle. Under Utah law, burglary of a vehicle is a class A misdemeanor, and there are no statutory provisions permitting enhancement of the offense. See Utah Code Ann. § 76-6-204(2) (LexisNexis 2017). Both the prosecutor and Williams's attorney, however, were apparently under the mistaken impression that the offense could be enhanced due to prior convictions, and agreed that Williams-who had similar prior convictions-was pleading guilty to a third-degree felony. The court entered the plea as a third-degree felony, and sentenced Williams accordingly: the court imposed a zero-to-five-year prison term but suspended that sentence and ordered Williams to serve a year in jail and complete an inpatient treatment program for drug addiction upon release. Williams was subsequently released to an inpatient treatment program, and placed on probation.

¶3 In late 2015, while Williams was still on probation, law enforcement officers found Williams sleeping in a vehicle with the motor running. The officers saw prescription amphetamines, later determined to be prescribed to someone other than Williams, in plain view in the vehicle, and observed that Williams was incoherent and struggling to stay awake. Officers determined that Williams was unable to safely perform field sobriety tests and therefore placed him under arrest; they later also found methamphetamine, syringes, and stolen property in the vehicle. After initially being taken into custody, Williams was released pending trial.

¶4 Approximately one month later, law enforcement officers performing an exterior patrol of the Matheson Courthouse in Salt Lake City heard the sound of breaking glass. The officers went towards the sound and observed Williams "jumping through the back passenger side window" of a vehicle. The officers then witnessed Williams leaving the vehicle with "both arms full of property." At this point, officers identified themselves and told Williams to stop. In response, Williams dropped the property, got into a vehicle parked nearby, and drove away from the officers. The vehicle, which turned out to be stolen, ran out of gas only a few blocks away, and Williams was subsequently apprehended.

¶5 Facing charges for both of the 2015 incidents, Williams pled guilty to one count of theft by receiving stolen property, a third-degree felony, and one count of attempted theft, a third-degree felony, in exchange for dismissal of all the remaining charges. At sentencing, after reviewing Williams's record, the district court indicated that it was inclined to "try something else" other than prison and inquired about placing Williams in "The Other Side Academy," a local rehabilitation program. After some discussion, the court then indicated that it would not send Williams to prison, but instead would suspend his prison terms and place Williams on probation for five years, and require Williams to, among other things, serve up to one year in jail and then enter into The Other Side Academy and successfully complete the program there. The court then asked if anyone had any questions about the sentence, and the probation officer asked what would happen if The Other Side Academy was not willing or able to take Williams, and whether that would constitute a violation of the terms and conditions of probation. In response, the court stated that it was "not sure if anything but prison is an option if" the program refused to accept Williams, and that the issue raised regarding whether that would constitute a probation violation was "a valid concern." The court then stated: "Let's not finish sentencing here. I will continue sentencing out for 60 days so we can get a firm answer" about whether Williams would be accepted into the program. The court then told Williams that it was trying to get him in the program but that, if Williams was unable to obtain admission, the court did not "know another option other than prison." The court then continued the sentencing hearing, stating specifically that it was "continuing everything in this sentencing." The court entered no order imposing sentence following that hearing.

¶6 A few weeks later, at the continued sentencing hearing, Williams revealed that he had been unable to get into The Other Side Academy. Williams requested that the court nonetheless place him on probation and permit him to participate in a different treatment program. The court declined that invitation, and instead sentenced Williams to two concurrent zero-to-five-year prison terms for both of Williams's convictions stemming from the 2015 incidents. The court also noted that Williams was on probation for the 2014 vehicular burglary, which had been entered as a third-degree felony, and sentenced Williams to a concurrent zero-to-five-year prison term as a consequence of violating the terms of his probation on that charge.

ISSUES AND STANDARDS OF REVIEW

¶7 Williams appeals, and asks us to consider three issues. First, Williams contends that his conviction for vehicular burglary was unlawfully enhanced from a class A misdemeanor to a third-degree felony. Whether an imposed sentence is illegal presents a question of law that we review for correctness. State v. Thorkelson , 2004 UT App 9, ¶ 9, 84 P.3d 854.

¶8 Second, Williams contends that he obtained "a legitimate expectation of finality" in the district court's initial imposition of probation on the 2015 counts, and that the court violated his constitutional protections against double jeopardy by later sentencing him to prison. Because Williams did not raise this issue before the district court, he asks us to review it for plain error. To prevail on a claim of plain error, Williams must show that: "(i) an error exists; (ii) the error should have been obvious to the [district] court; and (iii) ... absent the error, there is a reasonable likelihood of a more favorable outcome." State v. Bedell , 2014 UT 1, ¶ 20, 322 P.3d 697 (quotation simplified).

¶9 Third, Williams contends that the district court abused its discretion when it sentenced Williams to prison instead of probation. We review a district court's sentencing decision for abuse of discretion. State v. Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167.

ANALYSIS

A

¶10 Williams first contends that the district court imposed an illegal sentence when it accepted his incorrectly enhanced conviction for burglary of a vehicle and thus sentenced him for that offense as a third-degree felony as opposed to a class A misdemeanor. In its brief, the State concedes the point. See State v. Patience , 944 P.2d 381, 388 (Utah Ct. App. 1997) (stating that when a defendant enters into a plea agreement that contains a "mistake as to the law in effect at the time the parties entered into the plea agreement," and that mistake causes the defendant to receive a harsher sentence than he would have received if the plea agreement correctly represented the law, the defendant is "entitled to [the] lesser criminal punishment[ ] mandated by statute[ ]"). The parties also agree that the remedy in such cases is remand to the district court for resentencing pursuant to the correct law. Id .

¶11 In this case, Williams pled guilty to burglary of a vehicle, which is defined by statute as "a class A misdemeanor." Utah Code Ann. § 76-6-204(2). Under Utah law, no statute permits enhancing that offense. Despite this, Williams pled to the offense as a third-degree felony, and the district court sentenced him as if the offense were a third-degree felony. This was an illegal sentence, and Williams is thus entitled to the lesser criminal punishment provided for by the applicable statute. We therefore vacate Williams's sentence for burglary of a vehicle stemming from the 2014 incident, and remand that count for resentencing as a class A misdemeanor.

B

¶12 Williams next contends that the district court violated his state and federal rights against double jeopardy when it sentenced him to prison after he "gained a legitimate expectation of finality" in "his original probationary sentences." On this record, we find his argument unpersuasive.

¶13 Both the United States and Utah Constitutions contain provisions that "prohibit the state from placing an individual twice in jeopardy for the same offense." See Bernat v. Allphin , 2005 UT 1, ¶ 10, 106 P.3d 707 ; see also U.S. Const. amend. V ; Utah Const. art. 1, § 12. These provisions embody "three separate protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense." Bernat , 2005 UT 1, ¶ 11, 106 P.3d 707. Resentencing, however, does not always "implicate the double jeopardy protection from multiple punishments." See State v. Rodrigues , 2009 UT 62, ¶ 36, 218 P.3d 610 (quotation simplified); see also State v. Prion , 2012 UT 15, ¶ 64, 274 P.3d 919 (stating that "[t]he [federal] constitution leaves more leeway for the state to reconsider a defendant's sentence than to reevaluate his guilt"). Resentencing violates double jeopardy protection only "where the defendant has developed a legitimate expectation of finality in his original sentence." Rodrigues , 2009 UT 62, ¶ 36, 218 P.3d 610 (quotation simplified).

¶14 Generally, a defendant develops a reasonable expectation of finality in a sentence once that sentence has been announced or ordered by the district court. See State v. Udy , 2012 UT App 244, ¶ 18, 286 P.3d 345. However, "[w]here the [district] court expressly indicates that the sentence announced is subject to change, it is not reasonable to expect that the sentence is final." Id . Moreover, "in cases where the court has expressly declined to impose a final sentence until it has had the opportunity to review" further information, "jeopardy does not attach until the court issues a final signed order." Id . (quotation simplified).

¶15 In this case, Williams argues that he gained a legitimate expectation of finality in being sentenced to probation with regard to his two convictions stemming from the 2015 incidents when the district court initially indicated that it would sentence Williams to two suspended prison terms and place him on probation. Because of this, Williams argues that it was error for the court to later sentence him to prison for those same convictions. We disagree, because Williams's arguments are foreclosed by our previous decisions in Udy , 2012 UT App 244, 286 P.3d 345, and State v. Perkins , 2014 UT App 60, 322 P.3d 1184.

¶16 In Udy , a defendant being sentenced for securities fraud represented to the court that he was in the middle of a business deal that would allow him to pay back some of his victims within sixty days. Udy , 2012 UT App 244, ¶¶ 1-3, 286 P.3d 345. The court was skeptical, but decided to give the defendant a chance to make good on that representation. The court announced that it would refrain from sending the defendant to prison, and would instead impose a short jail sentence and probation, if the defendant could make substantial restitution payments within the next three months. Id. ¶ 4. However, the court then warned the defendant that this sentence would be subject to change if the defendant did not pay his victims within the three-month period. Id . While a sentencing order was prepared memorializing this arrangement, the court did not sign it. Id. ¶ 5. Three months later, the defendant had made no substantial restitution, and the district court revisited its former comments. Id. ¶¶ 6-7. Noting that it had initially indicated that it would impose a short jail sentence followed by probation, the court rescinded that statement and sentenced the defendant to lengthy prison terms. Id. ¶¶ 7-9. The defendant appealed, arguing that he had gained a reasonable expectation of finality in the sentence when the court first articulated it. Id . ¶¶ 11-12. On appeal, this court held that, because the district court had warned the defendant that its initial sentencing decision might be subject to change and because it did not sign an order following the first hearing, the defendant did not gain a legitimate expectation of finality in the sentence the court announced. Id . ¶ 18.

¶17 In Perkins , a defendant pled guilty to two counts of child abuse. Perkins , 2014 UT App 60, ¶ 1, 322 P.3d 1184. At the sentencing hearing, the district court expressed its view that the defendant should receive the maximum sentence possible, stating that "[q]uite frankly, I wish there was more [that] I [could] do [in sentencing the defendant] .... I quite frankly don't think [the defendant] should ever walk the streets again." Id . ¶ 5. The court then orally sentenced defendant to two zero-to-five-year terms and ordered that they run concurrently. Id . Later that day, the discrepancy between the court's comments and its order of concurrent sentences was brought to the court's attention. Id. ¶ 6. The court immediately ordered a follow-up hearing. Id. However, the court's clerk "mistakenly prepared a judgment ordering concurrent sentences, stamped the judge's name on it, and faxed it to the prison." Id . The court became aware of the mistake the next day, and notified the prison that the order was incorrect. Id. At the follow-up hearing, the court sentenced the defendant to consecutive zero-to-five-year prison terms. Id . The defendant appealed, arguing that he gained a legitimate expectation of finality in his sentence when the district court orally imposed the sentence and then issued a signed sentencing order memorializing the sentence. Id . ¶ 18. On appeal, this court disagreed, holding that, because the judge's preference for a maximum sentence was so strongly conveyed at the first hearing, the defendant "should have anticipated that concurrent sentencing was contrary to the trial judge's statements and that the trial judge had actually intended to say 'consecutively' instead of the similarly sounding term 'concurrently.' " Id. ¶ 18. Further, we noted that the sentencing order did not engender a legitimate expectation of finality in the defendant because "the following day the prison received a ... fax stating that the [sentencing order] was incorrect." Id . Accordingly, we held that the defendant had never gained a legitimate expectation of finality in his sentence. Id .

¶18 The facts set forth in Udy and, especially, Perkins represent circumstances that seem far more likely to have engendered a reasonable expectation of finality in a sentence than the facts presented here. In both Udy and Perkins , the sentencing courts orally imposed sentences which the defendants began serving, and in Perkins the court even issued an order memorializing its sentence. See Udy , 2012 UT App 244, ¶¶ 4-7, 286 P.3d 345 ; Perkins , 2014 UT App 60, ¶ 6, 322 P.3d 1184. But in both of those cases, the defendants were held not to have gained a legitimate expectation of finality in their sentences because the conduct of their respective sentencing courts should have put them on notice that the sentences issued may be subject to change or incorrect. See Udy , 2012 UT App 244, ¶ 18, 286 P.3d 345 ; Perkins , 2014 UT App 60, ¶ 18, 322 P.3d 1184.

¶19 In this case, Williams had even less reason than the defendants in either Udy or Perkins to expect that the district court's oral sentence was final. Here, the court did not ever sign a sentencing order memorializing the sentence Williams relies upon; indeed, the court modified its sentence just minutes after articulating it, and did so in response to input it received in response to its own question as to whether there were "[a]ny questions about the sentence." The court ended the hearing by clearly stating that it was "continuing everything in this sentencing" in order to allow time for Williams to explore whether he could be admitted into The Other Side Academy, and warned Williams that it was unaware of "another option other than prison" if Williams were unable to gain admission into the program.

¶20 Under these circumstances, especially in light of Udy and Perkins , we simply cannot conclude that Williams formed a legitimate expectation of finality in the probation sentence the court articulated at the hearing. Accordingly, the court did not violate Williams's double jeopardy protections at all, let alone commit plain error, when it sentenced Williams to prison instead of probation at the continued sentencing hearing.

C

¶21 Finally, Williams contends that the district court abused its discretion when it sentenced him to prison, asserting that the court failed to adequately weigh several "factors justifying probation." A court's sentencing decision "will not be overturned unless it exceeds statutory or constitutional limits, the judge failed to consider all of the legally relevant factors, or the actions of the judge were so inherently unfair as to constitute abuse of discretion." State v. Killpack , 2008 UT 49, ¶ 59, 191 P.3d 17 (quotation simplified). Williams maintains that, in this case, the district court "failed to adequately weigh his character, attitude, and rehabilitative needs before denying him the opportunity for a non-prison sentence." Williams also maintains that, despite his crimes, he was "committed to addressing his underlying issues of drug addiction [and] lack of social skills and life skills." Williams argues that this commitment was apparent because he had researched treatment programs and was willing to "take advantage of programming at the jail." Williams further asserts that prison is "not conducive to his rehabilitative needs" and argues that, for all these reasons, the district court "did not properly weigh the circumstances" when it sentenced him to prison.

¶22 We disagree. In doing so, we note the "wide latitude and discretion" we normally afford district courts in sentencing. State v. Woodland , 945 P.2d 665, 671 (Utah 1997). A sentencing court abuses its discretion only "if it can be said that no reasonable person would take the view adopted by the [sentencing] court." Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167 (quotation simplified). Here, Williams cannot satisfy that standard. Notably, Williams does not allege that the district court failed to consider any factor necessary for sentencing. Instead, Williams merely alleges that the district court failed to "adequately weigh" the various factors that Williams argues warranted probation. This is not sufficient to persuade us that "no reasonable person" would have sentenced Williams to prison instead of probation, especially considering Williams's criminal history and poor recent supervision history.

¶23 Accordingly, the district court did not abuse its discretion when it sentenced Williams to prison instead of probation with respect to his convictions related to the two 2015 incidents.

CONCLUSION

¶24 Because the district court did not violate Williams's double jeopardy rights and did not abuse its discretion in sentencing him to prison, we affirm Williams's sentences for his two convictions (theft by receiving stolen property, and attempted theft) stemming from the 2015 incidents. Because Williams's sentence for his 2014 vehicular burglary conviction was predicated on a legal error, we vacate that sentence. We remand this case for the limited purpose of resentencing on the 2014 vehicular burglary conviction.

      Williams also contends that the district court erred by revoking his probation on this first count without first holding a probation revocation hearing. Because we vacate Williams's sentence with respect to that conviction and remand for resentencing, we need not consider Williams's other argument.

      While Williams makes this argument with regard to all three counts, we need consider this argument only as it pertains to the second and third counts, because we vacate Williams's sentence on his first conviction for other reasons.