author: LARRY JOPLIN, Vice Chief Judge.

text:
    2002 OK CIV APP 41
    Roy EASTERWOOD, Plaintiff/ Appellant, v. CHOCTAW COUNTY DISTRICT ATTORNEY and Oklahoma Attorney General, Defendants/Appellees.
    No. 95,589.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 11, 2002.
    Certiorari Denied March 12, 2002.

      Roy Easterwood, Stringtown, OK, pro se.
    Tracy Folsom Milner, Assistant Attorney General, Oklahoma City, OK, for Appellees.
   LARRY JOPLIN, Vice Chief Judge.

11 Plaintiff/Appellant Roy Easterwood (Plaintiff) seeks review of the trial court's order dismissing his petition for declaratory judgment, by which Plaintiff sought an adjudication of the ethical duties and obligations of Defendants/Appellees Choctaw County District Attorney and the Oklahoma Attorney General (DA and AG, or collectively, Defendants) to "notify [him] their expert witness they used against him to obtain a conviction was not credible, and the responsibility to rectify the error."

2 According to the pleadings, DA filed an information sometime in early 1979 charging Plaintiff with the crime of murder in the first degree, to which Plaintiff entered a plea of not guilty by reason of insanity. At trial, Plaintiff presented expert testimony that at the time of both the homicide and trial, Plaintiff could not distinguish between right and wrong, and could not appreciate the nature and consequences of his actions. In rebuttal, DA presented the testimony of Dr. R.D. Garcia, a psychiatrist at Eastern State Hospital, Vinita, Oklahoma, who, upon an examination of Plaintiff, found him competent at all times relevant.

13 The jury convicted Plaintiff of the charged crime, and Plaintiff received a sentence of life imprisonment. On direct appeal, and citing Dr. Garcia's testimony, the Oklahoma Court of Criminal Appeals affirmed. Plaintiff subsequently sought post-conviction relief in state court, and filed two petitions for writ of habeas corpus in the federal court, which the courts denied in all respects.

4 In April 1997, the Tenth Cireuit Court of Appeals issued its opinion in Williamson v. Ward, 110 F.3d 1508 (10th Cir.(Okla.) 1997). In that case, the United States District Court for the Eastern District of Oklahoma granted the inmate/petitioner his requested writ of habeas corpus on a finding of ineffective assistance of counsel at trial. The Tenth Circuit affirmed, holding that the petitioner's appointed counsel "did not exercise reasonable professional judgment in deciding to limit his investigation of his client's mental condition ... and to rely solely on Dr. Garcia's letter in deciding not to request a competency determination," and noted evidence in the record that:

Had [counsel] investigated his client's history of mental problems and sought information about his mental state either from the mental health professionals who had treated him or from his family, [he] would have discovered significant evidence casting doubt upon the validity of Dr. Garcia's 1985 opinion that Mr. Williamson was competent. Most significantly, at the time Dr. Garcia rendered that opinion, it appears that Dr. Garcia, who died in 1986, was himself suffering from severe untreated bipolar disorder. (Citation omitted.) The record contains affidavits to that effect from mental health professionals who worked with Dr. Garcia and from a state Inspector General for the Oklahoma Department of Mental Health who received complaints about Dr. Garcia's bizarre conduct. The record also contains an affidavit from Dr. Philip J. Murphy, a clinical psychologist, who reviewed Dr. Garcia's personal medical history and his history of patient evaluations at Eastern State Hospital after Dr. Garcia's death. Dr. Murphy stated that, in his expert opinion, Dr. Garcia's "illness, in its manic form, was severe enough to affect Dr. Garcia's treatment of his patients and to impair and distort his diagnostic judgment." (Citation omitted.) Dr. Murphy concluded:
In summary, it is my opinion that because of the distorting influence of Dr. Garcia's mental illness on his perceptions and his judgments, neither Dr. Garcia's evaluations of Mr. Coleman's condition nor his opinion about Mr. Coleman's competency to stand trial should have formed the basis of a determination of Mr. Coleman's competency in 1979.

Williamson, 110 F.3d at 1519.

15 Plaintiff discovered the Williamson opinion in August 1998, and in October 1998, applied to the Tenth Circuit for permission to file a successive petition for writ of habeas corpus. See 28 U.S.C. §§ 2244, 2254. The Tenth Cireuit granted the request, and in November 1998, Plaintiff filed his third petition for writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma.

16 However, the federal district court dismissed Plaintiff's petition as untimely filed. On a certificate of appealability, the Tenth Circuit in June 2000 reversed and remanded for further proceedings, finding Plaintiffs successive petition for writ of habeas corpus timely. Easterwood v. Champion, 213 F.3d 1321 (10th Cir.(Okla.) 2000).

T7 In September 2000, Plaintiff commenced the instant declaratory judgment action, seeking an adjudication of Defendants' "ethical obligation" to "notify [him] their expert witness they used against him to obtain a conviction was not credible, and the responsibility to rectify the error." In his petition, Plaintiff asserted the Rules of Professional Conduct and Constitutional due process guarantees imposed on Defendants the duty and obligation to "notify and correct the incredible testimony and rectify the error," and that "declaratory judgment is proper to decide [his] rights."

18 AG filed a motion to dismiss, arguing that to the extent Plaintiff's petition sounded in tort, the Oklahoma Declaratory Judgment Act, 12 0.8. § 1651 et seq., did not permit litigation of the issues raised. AG also argued that to the extent Plaintiffs petition sought a vindication of civil rights under 42 U.S.C. § 1983, Plaintiff did not timely com-mencee the action within two years of when Plaintiff knew or should have known of his challenge to Dr. Garcia's testimony. Seq, Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1988, 85 L.Ed.2d 254 (1985) (state's personal injury statute dictates statute of limitations for § 1983 action); 12 O.S. 95 (B). AG lastly asserted no justiciable controversy, and immunity from liability under the Oklahoma Governmental Tort Claims Act, 51 0.8. 151, et seq., § 155(2), for the claimed loss arising from the exercise of "prosecutorial functions."

19 Plaintiff responded, objecting to the motion to dismiss. First, said Plaintiff, the law charged Defendants with an on-going obligation to reveal material evidence of which they knew or should have known affecting the validity of Dr. Garcia's opinions, and that Defendants never disclosed to him-at trial or since-the questionable nature of Dr. Garcia's opinions. Seq, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1968); United States v. Bag-ley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Hast v. Johnson, 123 F.3d 285, 239 (5th Cir.(Texas) 1997). Second, said Plaintiff, considering his "legal disability," i.e., his questionable competency, the statute of limitations posed no bar to his claims. Third, considering Defendants' failure to notify him concerning the weakness of Dr. Garcia's opinion in his case, now thoroughly impeached by reference to Williamson, his pleadings adequately set forth a claim for conspiracy to deny him his right to due process. So, said Plaintiff, there existed an actual case and controversy to be properly adjudicated in his action for a declaratory judgment.

T 10 On consideration of the parties' materials and briefs, the trial court granted the motion to dismiss:

... [The Petition should be denied for the reason that there is no actual controversy as required by Oklahoma's Declaratory Judgment Act at 12 0.8. § 1651. According to the Declaratory Judgment Act, district courts may enter declaratory judgments only in cases containing an actual controversy. 12 0.8.1991 § 1651. In the case at hand, no actual controversy exists. Plaintiff asks the Court to find that Defendants had an ethical obligation to Plaintiff to divulge information to him, either before trial or after conviction and direct appeal, concerning the competency or credibility of a state's expert witness. The ethical obligations of prosecutors are governed by the Rules of Professional Conduct and questions concerning a prosecutor's ethical obligations standing alone do not create or establish a case or actual controversy. Therefore, Plaintiff's petition must be dismissed.

Plaintiff appeals.

¶11 "District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of ... any statute, ..., or other governmental regulation, whether or not other relief is or could be claimed, except that no such declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment...." 12 0.8. § 1651. By force of statute, there must therefore exist an "actual controversy":

[Tjo invoke the jurisdiction of the court under the declaratory judgments act there must be an actual, existing justiciable controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute.

Gordon v. Followell, 1964 OK 74, ¶ 0(1), 391 P.2d 242. (Emphasis added.) To be "justiciable," "the claim must be suitable for judicial inquiryl,] [which] requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature." Dank v. Benson, 2000 OK 40, ¶8, 5 P.3d 1088, 1091. See also, 12 0.8. § 1651 ("a court may refuse to make such determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding.")

12 Furthermore, the regulation of the legal profession and the adjudication of an attorney's ethical obligations ordinarily stands beyond the scope of a declaratory judgment action. State Bar of Texas v. Gomez, et al., 891 S.W.2d 248 (Tx.1994). And, an action for a declaratory judgment will not lie "to launch an impermissible collateral attack upon the judgment and sentence in a criminal case." Oklahoma State Senate ex rel. Roberts v. Hetherington, 1994 OK 16, ¶ 1, 868 P.2d 708, 709.

$13 In the present case, we find no actual, justiciable controversy capable of determination. The Defendants' ethical obligations as members of the legal profession and prosecutors may not be determined by declaratory judgment. To the extent Plaintiff's claims sound in tort, § 1651 expressly proscribes a declaration of rights. To the extent Plaintiff claims some violation of his civil rights allegedly remediable under 42 U.S.C. § 1988, because Plaintiff knew or should have known of those claims upon publication of Williamson and receipt thereof in the prison library in July 1997, but did not commence the instant action until September 2000, it would appear those claims stand barred by the two year statute of limita tions. Wilson, 471 U.S. at 280, 105 S.Ct. at 1949; 12 O.S. 95 (3). And, Plaintiff may not collaterally attack the judgment and sentence in his criminal case by an action for declaratory judgment. Oklahoma State Senate ex rel. Roberts, 1994 OK 16, ¶1, 868 P.2d at 709.

€ 14 The order of the trial court is therefore AFFIRMED.

[ 15 JONES, J., and BUETTNER, J., concur.

      . The record before us reflects no resolution of this case.

      . Here, AG argued that the validity of Dr. Garcia's opinions had been questioned as early as 1990 and 1995, as well as in Williamson in 1997. See, Coleman v. Saffle, 912 F.2d 1217 (10th Cir.(Okla.) 1990); Brewer v. Reynolds, 51 F.3d 1519 (10th Cir.(Okla.) 1995).

      . Decided on a petition to "assume original jurisdiction and declare the meaning of the 'read at length' provision of Okla. Const. art. 5, § 34," praying for the application of "any constitutional construction provided by the Court ... prospectively ... [by writ of mandamus] to the 'legislative process' used in the House of Representatives." 2000 OK 40, 10, 5 P.3d at 1088-89.

      . See, Easterwood, 213 F.3d at 1323.

      . pro se proceedings here, as well as in the Eastern District and 10th Circuit Courts, belie his claim to tolling of the statute of limitations on account of a mental disability.


source: Caselaw Access Project

author: CAROL M. HANSEN, Presiding Judge.

license: Public Domain

text:
    2002 OK CIV APP 47
    Christine JOHNSON, individually formerly Christine Ennis, as mother and next of friend of Garrett Ennis, a minor and as personal representative of the Estate of Jacob Isaiah Ennis, a minor, Plaintiff/ Appellant, v. Yvonne FINE, M.D., Defendant/Appellee.
    No. 96,991.
    Court of Civil Appeals of Oklahoma, Division No. 8.
    Jan. 18, 2002.
    Certiorari Denied March 26, 2002.

      Brently C. Olsson, Oklahoma City, OK, for Plaintiff/ Appellant.
    J. Roger Hurt, R. Ben Houston, Oklahoma - City, OK, for Defendant/Appellee.
   CAROL M. HANSEN, Presiding Judge.

11 Christine Johnson filed this action in district court against defendant Yvonne Fine, M.D. for wrongful death and medical malpractice. She alleged that on June 13, 1998, her two minor sons were riding in a car driven by their father, Robert Ennis, who crossed left of center and struck another vehicle in a head-on collision, severely injuring his son Garrett and killing his other son, Jacob.

«[ 2 Plaintiff claimed that at the time of the accident, Robert Ennis was under the influence of Xanax and Methadone which impaired his judgment and his ability to operate the motor vehicle. She alleged Dr. Fine was negligent in continuing to prescribe Xa-nax to Robert Ennis, knowing that he was also taking Methadone in a drug rehabilitation program. She further claimed Dr. Fine was negligent in prescribing Xanax without warning Mr. Ennis of the consequences of combining the drugs. Such negligence, she argued, significantly contributed to the cause of the accident and the resulting damages.

{3 Dr. Fine answered and set out as one affirmative defense that the claims involved unforeseeable plaintiffs to whom no legal duty was owed, as the children and their mother were not her patients. She then filed a motion for summary judgment based on this single affirmative defense. The trial court agreed and granted her motion dismissing the action. Plaintiff appeals to this Court.

$4 In reviewing an order granting summary judgment, the appellate standard of review is de novo. This Court, 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. Kirkpatrick v. The Chrysler Corporation, 1996 OK 136, 920 P.2d 122. Summary judgment is an appropriate remedy when the moving party is entitled to judgment as a matter of law. Buckner v. General Motors Corporation, 1988 OK 73, 760 P.2d 808.

. 15 In any negligence action, the first item that a plaintiff must establish is that the defendant owed a duty to that plaintiff to protect him or her from the alleged injury. The duty of the defendant is a threshold question of law to be determined by the court. Haas v. Firestone Tire and Rubber Co., 1976 OK 178, 568 P.2d 620. The facts here are uncontroverted. The only issue is one of law, that of a duty owed to third party non-patients that are allegedly injured as a result of a physician's negligence in preserib-ing medication to a patient.

T6 Both parties point to decisions from other jurisdictions supporting their views. Oklahoma has never addressed this precise issue. However, Oklahoma decisions have carved out two similar exceptions to the general rule of non-liability to third parties for an actor's negligence. In Wofford v. Eastern State Hospital, 1990 OK 77, 795 P.2d 516, Mrs. Wofford sued the psychiatric hospital for damages she sustained when her adult son, who had been a patient at the hospital, killed his stepfather (her husband), two years after the hospital had discharged the son. Mrs. Wofford claimed the hospital was negligent in releasing her son and in failing to supervise him after he was released.

47 In concluding that the hospital might have had a duty to Mrs. Wofford to use ordinary care in releasing her son, the Court recognized an exception to the common law rule that a person has no duty to prevent a third person from injuring another, i.¢., where "a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Wofford, 1990 OK 77, 19, 795 P.2d at 518. Nevertheless, the Court concluded the hospital had no duty under the cireumstances of that case because the son's actions occurred too remote in time from his release to have been legally foreseeable by the hospital.

18 The most important consideration in the determination of whether a duty exists is foreseeability; the general rule is that a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous." Foreseeability establishes a "zone of risk," that is, whether the conduct "creates a generalized and foreseeable risk of harming others." Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 918 P.2d 1318, 1321. "Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." Fuller v. Pacheco, 2001 OK CIV APP 89, 21 P.3d 74. This concept has been applied to enforce dram shop liability for a commercial vendor who provided alcoholic beverages to a noticeably intoxicated person who then injured a third party because of his intoxication. Brigance v. Velvet Dove Restaurant, Inc., 1986 OK 41, 725 P.2d 300. The Supreme Court in Brigance adopted the Restatement (Second) of Torts §§ 308, 390 (1965).

9 At first blush, the foreseeability analysis underlying Wofford, Brigance, and Del-brel might be seen to support the existence of duty under these circumstances. However, foreseeability is not the sole criterion in this area. For example, even though it seems that the risk to others by an intoxicated driver is foreseeable to any person furnishing an alcoholic beverage to a noticeably intoxicated person, as in Brigance, without regard to the characterization of the person furnishing the beverage, the Oklahoma Supreme Court refused to impose a Brigance duty on persons who were not commercial vendors of aleoholic beverages in McGee v. Alexander, 2001 OK 78, 37 P.3d 800... In refusing to adopt social host liability, the Court noted the sweeping societal implications which might result from imposing such liability.

110 Extending a physician's duty beyond the patient presents similar concerns. Wofford extended that duty only under very narrow circumstances presented by the special relationship between a psychiatric patient and the physician or hospital providing care. Duty depends upon the relationship between the parties. The cireumstances presented here do not call for an expansion of the principles underlying Wofford. Accordingly, we hold the trial court did not err in granting Dr. Fine's motion for summary judgment and finding in these cireumstances, as a matter of law, Dr. Fine did not owe a duty to Plaintiff.

111 AFFIRMED.

4 12 ADAMS, J., concurs; JONES, J., sitting by designation, concurs.

      . Plaintiff originally included Orange Quarters, Inc., an Oklahoma corporation d/b/a Life Improvement Center as a defendant, but early in the action dismissed it as a defendant.

      . The appeal is filed without appellate briefs in conformance with the procedures for the appellate accelerated docket, Rule 1.203, Rules of Civil Appellate Procedure, 12 0.$.1991 Ch. 15, App.2.

      . Dr. Fine admits it is a question of fact whether she was negligent if a duty is found.

      . Section 308 states:
      It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
      Section 390 states:
      One supplies ... a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and others ... is subject to liability for physical harm resulting to them.


author: JERRY L. GOODMAN, Judge.

text:
    2002 OK CIV APP 44
    William J. BENSON, Plaintiff/Appellant, v. Mike HUNTER, Oklahoma, Secretary of State, Defendant/Appellee.
    No. 96,995.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    March 5, 2002.
    Brian M. Dell, Brian M. Dell, P.C., Oklahoma City, OK, for Plaintiff/Appellant.
    W.A. Drew Edmondson, Attorney General, Neal Leader, Assistant Attorney General, Oklahoma City, OK, for Defendant/Appellee.
   JERRY L. GOODMAN, Judge.

{1 William J. Benson (Taxpayer) appeals from the trial court's November 6, 2001, order granting summary judgment to Mike Hunter, Oklahoma Secretary of State (Seere-tary), dismissing Taxpayer's suit against Secretary. Taxpayer alleged Oklahoma's 1910 ratification of the 16" Amendment to the United States Constitution was invalid, and therefore the 16" Amendment, imposing an income tax, is void. The appeal was assigned to the accelerated docket pursuant to Okla. Sup.Ct.R. 1.36, 12 0.8. Supp.2000, ch. 15, app. 1. Based upon our review of the facts and applicable law, we affirm.

FACTS

T2 Taxpayer, an Ilinois resident, alleged the 16%" Amendment to the United States Constitution, imposing an income tax, is void for lack of ratification. Specifically, Taxpayer contends Oklahoma's Legislature convened in Guthrie, Oklahoma, on January 20, 1910, in an extraordinary session, to consider ratification of the 16** Amendment and passed ratifying legislation containing typographical errors, thus approving a different amendment than the one submitted for ratification. Under the United States Constitution, changes to a proposed constitutional amendment are not permitted. Thus, the only legislative act permitted is that of ratification or rejection of the proposed amendment as transmitted from the United States Secretary of State to the governors of the various states. Therefore, Taxpayer contends Oklahoma's purported ratification was invalid, and the 16" Amendment did not receive the necessary number of ratifying votes to become effective. Consequently, the proclamation issued by the United States Secretary of State Philander Knox proclaiming that ratification was complete and that the 16" Amendment was enacted, is void.

13 Taxpayer filed a petition for declaratory relief January 18, 2001, pursuant to 12 ©.S8.1991 §§ 1651 through 1657. Taxpayer does not name any federal entity or official in this suit. Instead, the only named defendant is Hunter, the Oklahoma Secretary of State. Taxpayer seeks to compel Secretary to notify the United States Secretary of State that Oklahoma did not ratify the 16" Amendment.

{ 4 Secretary filed a motion to dismiss the claim on March 5, 2001, based on three defenses. The brief in support of the motion to dismiss first alleges that Taxpayer's suit concerns a non-justiciable matter; second, the suit is based on a non-justiciable political question; and, third, it fails to present an actual controversy between parties having immediate and substantial opposing interests. Therefore, Secretary concludes, Taxpayer has failed to state a claim for which relief can be granted, entitling Secretary to dismissal of the suit.

T5 Taxpayer responded to the motion to dismiss by filing a brief and evidentiary material in support of his response. Taxpayer's response effectively converted the motion to dismiss to one for summary judgment. A motion to dismiss pursuant to 12 0.8.1991 § 2012 (B)(6) is converted to one for summary judgment when materials outside the pleadings are presented to, and not excluded by, the court. Washington v. State ex rel. Dept. of Corrections, 1996 OK 139, 915 P.2d 359; Shaffer v. Jeffery, 1996 OK 47, 915 P.2d 910. Upon conversion to a proceeding for summary judgment, the burden changes and the movant must demonstrate there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. Shaffer, 1996 OK 47 at 111, 915 P.2d at 914. Review of a summary judgment is de novo. Vance v. Federal Nat. Mortg. Ass'n, 1999 OK 73, 988 P.2d 1275. See Gabler v. Holder and Smith, Inc., 2000 OK CIV APP 107, 11 P.3d 1269.

11 6 The trial court's order did not treat the matter as one for summary judgment, but did state that the court had read all the evidentiary material submitted in support of Taxpayer's position. The trial court granted Secretary's motion to dismiss in an order filed November 6, 2001, citing all three of Secretary's defenses as reason for its decision. Taxpayer appeals.

T7 Nevertheless, we will review the trial court's decision as one for summary judgment. Summary judgment is appropriate only when there is no substantial controversy as to any material fact, and one of the parties is entitled to judgment as a matter of law. The court must also find that reasonable people could not reach different conclusions on the undisputed facts. All inferences to be drawn from the undisputed facts must be viewed in the light most favorable to the party opposing the motion. Hutchins v. Silicone Specialties, Inc., 1993 OK 740, 881 P.2d 64; Erwin v. Frazier, 1989 OK 95, 786 P.2d 61.

ANALYSIS

T8 Although Taxpayer contends that he, as an Illinois resident, has standing to use this state's declaratory judgment statute to obtain relief, and both parties address the question of whether Taxpayer has presented a justiciable issue, we need not address those issues. We hold the principal of stare decisis operates to preclude our examination of this question.

19 The United States Supreme Court in Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), has held that once the United States Secretary of State certifies that a particular constitutional amendment has received the necessary ratifying votes and is now part of the United States Constitution, the declaration of same is binding upon the courts,. The Leser court held that when the United States Secretary of State issued a proclamation that the 19%" Amendment, which granted suffrage to women, had been ratified and was part of the United States Constitution, that declaration was conclusive upon the courts. The Leser decision has been interpreted to mean that despite challenges to the United States Secretary of State's proclamation on the basis that certain states failed to ratify the amendment, or that a state's resolution of ratification was defective, once the proclamation was duly authenticated and certified, said states were bound by its provisions.

10 Moreover, the exact legal question- and similar fact question-now before us was answered in United States v. Thomas, 788 F.2d 1250 (7th Cir.1986). Thomas was convicted of tax evasion, and used Taxpayer's argument, as published in Taxpayer's book, to challenge the validity of the 16%" Amendment. We quote at length from Thomas:

Thomas is a tax protester, and one of his arguments is that he did not need to file tax returns because the sixteenth amendment is not part of the constitution. It was not properly ratified, Thomas insists, repeating the argument of W. Benson & M. Beckman, The Law That Never Was (1985). Benson and Beckman review the documents concerning the states' ratification of the sixteenth amendment and conclude that only four states ratified the sixteenth amendment; they insist that the official promulgation of that amendment by Secretary of State Knox in 1918 is therefore void.
Benson and Beckman did not discover anything; they rediscovered something that Secretary Knox considered in 1918. Thirty-eight states ratified the sixteenth amendment, and thirty-seven sent formal instruments of ratification to the Secretary of State. (Minnesota notified the Seere-tary orally, and additional states ratified later; we consider only those Secretary Knox considered.) Only four instruments repeat the language of the sixteenth amendment exactly as Congress approved it. The others contain errors of diction, capitalization, punctuation, and spelling.
The text Congress transmitted to the states was: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." Many of the instruments neglected to capitalize "States," and some capitalized other words instead. The instrument from Illinois had "remuneration" in place of "enumeration"; the instrument from Missouri substituted "levy" for "lay"; the instrument from Washington had "income" not "incomes"; others made similar blunders.
Thomas insists that because the states did not approve exactly the same text, the amendment did not go into effect. Seere-tary Knox considered this argument. The Solicitor of the Department of State drew up a list of the errors in the instruments and-taking into account both the triviality of the deviations and the treatment of earlier amendments that had experienced more substantial problems-advised the Secretary that he was authorized to declare the amendment adopted. The Seere-tary did so.
Although Thomas urges us to take the view of several state courts that only agreement on the literal text may make a legal document effective, the Supreme Court follows t the "enrolled bill rule." If a legislative document is authenticated in regular form by the appropriate officials, the court treats that document as properly adopted. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892). The principle is equally applicable to constitutional amendments. See Leser v. Garnett, 258 U.S. 180, 42 S.Ct. 217, 66 L.Ed. 505 (1922), which treats as conclusive the declaration of the Secretary of State that the nineteenth amendment had been adopted. In United States v. Foster, 789 F.2d 457, 462-63 & n. 6 (7th Cir.1986), we relied on Leser, as well as on the inconsequential nature of the objections in the face of the 73-year acceptance of the effectiveness of the sixteenth amendment, to reject a claim similar to Thomas's. See also Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (questions about ratification of amendments may be nonjusticiable). Secretary Knox declared that enough states had ratified the sixteenth amendment. The Secretary's decision is not transparently defective. We need not decide when, if ever, such a decision may be reviewed in order to know that Secretary Knox's decision is now beyond review.

U.S. v. Thomas, 788 F.2d at 1253, 1254. See also United States v. Stahl, 792 F.2d 1483 (9th Cir.1986) (addressing the identical issue with the same result).

111 Thus, we need not delve further into the arguments presented by the parties because it is clear that we are bound by the Secretary of State's proclamation that the 164° Amendment was duly ratified by the necessary number of states, including Oklahoma. We are bound by the decision of the United States Supreme Court, and find the decision of the United States Cireuit Courts persuasive on this issue of federal law. We adopt their reasoning. All of Taxpayer's arguments have been previously made, rebutted, and adjudicated. The trial court correctly dismissed Taxpayer's claim and entered judgment for Secretary.

€ 12 AFFIRMED.

18 COLBERT, P.J., and RAPP, J., concur.

      . According to the material attached to Taxpayer's pleadings, 10 other state legislatures returned ratification resolutions to Washington D.C., containing typographical and editorial errors. Allegedly, Minnesota did not return any ratification resolution.

      . And therein lies the answer to Taxpayer's argument: if the Oklahoma legislature cannot effect changes in the language of the proposed amendment, it is reasonable to assume the legislature did not do something it had no power to do, and that it did intend to act within the limited power given it in this situation. We do not infer that the inclusion of typographical and semantic errors are of such weight as to be construed as rejection of the amendment, given that the amendment appears in context with a proclamation stating "Be it resolved ... that said proposed amendment ... is hereby ratified." See House Joint Resolution No. 5, March 14, 1910, Laws 1910.

      . W. Benson & M. Beckman, The Law That Never Was (1985).

      . Assuming arguendo we were not bound by Federal precedent, to afford Taxpayer the relief sought would require this court to compel Secretary to perform a vain act, something we will not do. A proposed amendment to the U.S. Constitution is transmitted, in our case, from the United States Secretary of State to the Oklahoma Governor, and then to the Oklahoma Legislature. A resolution adopting the proposed amendment is returned the same way. The only contact the Oklahoma Secretary of State has with the amendment is as the custodian of the document. The Oklahoma Secretary of State, as a member of the executive branch, has no contact with his federal counterpart, and is in no position to rescind a legislative resolution adopting the amendment. Thus, even were we inclined to grant the requested relief, compelling the Oklahoma Secretary of State to notify the United States Secretary of State of the legislative defects would not produce any action by the federal government. The United States Secretary of State would only look to the state legislature for guidance on the status of the legislative resolution ratifying the proposed amendment.


author: JACKSON, Presiding Judge: GREENWOOD, Judge

text:
    2002 UT App 75
    Kathryn Ann JOHANSEN nka Kathryn Ann Turner, Plaintiff and Appellee, v. Paul R. JOHANSEN, Defendant and Appellant. State of Utah, Office of Recovery Services, Intervenor and Appellee.
    No. 20001127-CA.
    Court of Appeals of Utah.
    March 14, 2002.

      Jeffrey Robinson, Robinson & Sheen LLC, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, Karma K. Dixon, Assistant Attorney General, and Steven C. Russell, Affordable Legal Advocates, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and GREENWOOD, and THORNE JJ.
   OPINION

JACKSON, Presiding Judge:

11 1 Appellant Paul R. Johansen appeals the trial court's denial of his motion for partial summary judgment. We reverse and remand.

BACKGROUND

T2 Appellant and Appellee were divorced in January, 1989. At that time they had three children: Laura, Lynsay, and Leisa. The divorce decree awarded Appellee a lump sum of $540.00 per month in child support, and did not address changes in child support when the children became "emancipated" by reaching eighteen years of age. Laura reached her eighteenth birthday on September 2, 1995, as Lynsay did on October 1, 1997. Intervenor, Utah Office of Recovery Services (ORS), "collected child support and sought to collect arrears from [Appellant] after the children's eighteenth birthdays at the original child support amount without any adjustment." On February 15, 2000, Appellant petitioned the trial court to modify his child support obligation, seeking an order that would retroactively reduce his child support obligation from the time Laura and Lynsay became emancipated. The trial court denied his motion for partial summary judgment as to this issue. This appeal followed.

ISSUES AND STANDARD OF REVIEW

13 Appellant challenges the trial court's conclusion that "[blecause the decree of divorce was entered prior to" the enactment of Utah Code Ann. § 78-45-7.10 (Supp. 2001) (Automatic Adjustment Statute), that the Automatic Adjustment Statute, which "provides for an automatic adjustment of child support when a child" becomes emancipated, does not apply. Appellant also challenges the trial court's legal conclusion that

[blecause the parties' decree neither specifies a per-child amount of child support nor the incomes of the parties at the time the decree was entered, it is impossible for the Court to evaluate retroactively what child support should have been when the first child reached age 18 or when the second child reached 18.

T4 "' "Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Because a summary judgment presents questions of law, we review the trial court's ruling for correctness." Krambule v. Krambule, 1999 UT App 357,¶ 10, 994 P.2d 210 (citations omitted); see also Department of Human Servs. v. Jacoby, 1999 UT App 52,¶7, 975 P.2d 989 ("''Whether a statute operates retroactively is a question of law, which we review for correctness without deference to the district court"" (Citation omitted.)); Brinkerhoff v. Brinkerhoff, 945 P.2d 113, 115 (Utah Ct.App.1997) (applying a correction of error standard of review to interpretation of statute governing child support proceedings); Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct.App.1996) (same).

ANALYSIS

15 We first address whether the Automatic Adjustment Statute may apply to support orders in foree prior to the effective date of the statute. A statute may be applied retroactively where it "is merely procedural and does not 'enlarge, eliminate, or destroy vested or contractual rights'" Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct. App.1996) (citation omitted); accord Pilcher v. State Dept. of Soc. Servs., 668 P.2d 450, 455 (Utah 1988). On the other hand, a statute is substantive and may not be applied retroactively where it "establishes 'a primary right and duty which was not in existence at the time [the claim] arose?" Id. (alteration in original) (quoting Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 669-70 (Utah Ct.App.1990)); accord Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 675 (Utah 1997).

16 "[Nlo one has any vested rights in a [child] support decree which statutorily may be changed from time to time by a court under its continuing jurisdiction. ..." Wiker v. Wiker, 600 P.2d 514, 515 (Utah 1978); accord Kocherov v. Kocherov, 775 S.W.2d 539, 541 (Mo.Ct.App.1989) ("'Since a child support order is modifiable after judgment . a child's right to future, unacerued installments of child support is not a vested right.'" (Citation omitted.)). In other words, a child support payment does not become a vested right until it accrues. The Automatic Adjustment Statute became effective before the child support payments in question accrued. Indeed, the Automatic Adjustment Statute became effective April 24, 1989, see Utah Code Ann. § 78-45-7.10 (Supp. 1989), while Laura and Lynsay became eighteen years old on September 2, 1995 and October 1, 1997 respectively. Thus, at the time the statute became effective, no one had a vested right to the child support payments that would acerue after Laura's or Lynsay's eighteenth birthdays. Accordingly, the statute, as applied to Laura and Lynsay, "is merely procedural and does not 'enlarge, eliminate, or destroy vested or contractual rights'" Ball, 912 P.2d at 1009 (citation omitted). As a result, we conclude the Automatic Adjustment Statute may be applied retroactively to Laura and Lynsay. See id.

T7 Appellant next challenges the trial court's conclusion that because the divorce decree awarding child support predated the child support guidelines, it is "impossible" to calculate the child support award according to those guidelines. Put differently, he argues the trial court interpreted the Automatic Adjustment Statute in a way that would render portions of it inoperable, thus presenting us with a question of statutory interpretation.

[Olur primary goal when construing statutes is to evince "the true intent and purpose of the Legislature [as expressed through] the plain language of the Act." In doing so, we seek "to render all parts thereof relevant and meaningful," and we accordingly avoid interpretations that will render portions of a statute superfluous or inoperative.

Hall v. Utah State Dep't of Corr,, 2001 UT 34, ¶15, 24 P.3d 958 (second alteration in original) (citations omitted).

18 We do not agree that the statute should be construed in a manner that renders it superfluous or inoperative. The Automatic Adjustment Statute reduces the combined child support obligation "to reflect the [amount] shown in the table for the remaining number of children due child support." Utah Code Ann. $ 78-45-7.10 (emphasis added). Utah Code Ann. § 78-45-2(5) (Supp. 2001) provides that " 'table' means the appropriate table in Section 78-45-7.14." Neither section specifies which year's table should be applied. "[OImissions in statutory language should 'be taken note of and given effect'" Biddle v. Washington Terrace City, 1999 UT 110,114, 998 P.2d 875 (citation omitted). Giving effect to the Legislature's omission requires us to interpret the omission of a specific year as the Legislature's intent to apply tables in effect as of the same year as the omission. If it intended a different year's statute to be applied, it would have said so. Also, we cannot suppose that the Legislature intended this statute to be rendered inoperative simply because no "table" existed at the time many of the orders to which the statute would later apply were entered. Thus, giving effect to the Legislature's omission, and to avoid an interpretation that would often render the statute inoperative, we conclude "the table" referred to in the Automatic Adjustment Statute to be the base combined child support obligation table in effect the same year as the version of the Automatic Adjustment Statute that is being applied.

T9 Further, we note that the base combined child support obligation table, as applied here, is procedural in nature for the same reasons that the Automatic Adjustment Statute is procedural. Thus, the guidelines referred to in the Automatic Adjustment Statute may also be applied retroactively in this case. Accordingly, we reverse the trial court's ruling that calculating the child support award in this case is "impossible" simply because the divorcee decree awarding child support predated the guidelines referenced in the Automatic Adjustment Statute.

110 Next, we address Appellant's challenge to the trial court's conclusion that "[blecause the parties' decree neither specifies a per-child amount of child support nor the incomes of the parties at the time the decree was entered, it is impossible for the Court to evaluate retroactively what child support should have been when the first child reached age 18 or when the second child reached 18." This challenge also presents us with a question of statutory interpretation. We determine that the trial court erred in its legal conclusion.

{11 Nothing in the plain language of the statute makes automatic adjustment of a child support order dependent on whether the original order specified a per-child amount or the parties' incomes at the time the order was entered. Indeed, the Automatic Adjustment Statute simply states that "the base child support award is automatically reduced ... [as] shown in the table for the remaining number of children due child support, unless otherwise provided in the child support order." Utah Code Ann. § 78-45-7.10 (Supp. 2001). This unambiguous language plainly requires automatic reduction unless otherwise provided in the original order. Here, the original order does not provide otherwise.

( 12 Moreover, the 2000 atuiendment to the Automatic Adjustment Statute specifically provides a solution where the original order fails to specify the parties' incomes:

(38) The income used for purposes of adjusting the support shall be the income of the parties at the time of the entry of the original order. If income was not listed in the findings or order and worksheets were not submitted, the parties may submit tax returns or other verification of the income.

Utah Code Ann. § 78-45-7.10(8) (Supp. 2001). Thus, automatic reduction of a child support award is not made "impossible" simply because the parties' incomes were not specified in the original order. Accordingly, Appellant's child support obligation should have been automatically adjusted when Laura and Lynsay were emancipated.

CONCLUSION

T13 Utah Code Ann. § 78-45-7.10 (Supp. 2001) is procedural as applied to Appellant. Thus, Appellant is entitled to retroactive reduction of the base child support award as of Laura's and Lynsay's respective emancipa-tions. Those reductions should be calculated according to the "base combined child support obligation shown in the table for the remaining number of children due child support," as indicated above, Utah Code Anu. § 78-45-7.10 (Supp. 2001)... Accordingly, we reverse and remand for further proceedings consistent with this opinion.

114 I CONCUR: WILLIAM A. THORNE JR., Judge.

GREENWOOD, Judge

(dissenting):

€{15 I respectfully dissent from my colleagues, to suggest an alternative approach to resolving the primary issue in this case.

T 16 I begin by repeating some of the facts included in the majority opinion and adding some additional facts. The divorce decree in this case was entered January 1989. The decree included an order of child support for the three children of $540 per month. The order was silent as to any per child amount or future reductions as each child turned eighteen or was otherwise excluded from child support.

117 Utah Code Ann. § 78-45-7.10 (Supp. 1989) (the Statute) was enacted and became effective April 24, 1989. The Statute originally provided that it was effective when a child became eighteen years of age. See id. It was amended in 1994 to the present version of subsection (1), to state it was effective at age eighteen "or [when the child] has graduated from high school during the child's normal and expected year of graduation, whichever occurs later." Utah Code Ann. § 78-45-7.10(1) (Supp. 1994). The two older children, Laura and Lynsay, turned eighteen on September 2, 1995 and October 1, 1997, respectively. The State, through the Office of Recovery Services (ORS), acted on behalf of appellee to collect the child support. See Utah Code Ann. § 62A-11-101 to -104 (2000). Appellant appeared in court on an Order to Show Cause on October 4, 1995, brought by ORS to collect child support ar-rearages that had accrued through May of 1995, before any of the children turned eighteen. Almost a year later, appellant contacted ORS regarding reducing his child support obligation because of his eldest child's emancipation. ORS asked appellant to provide worksheets that appellant had indicated he possessed. However, there was no further communication between appellant and ORS. On February 15, 2000, appellant filed his petition to modify child support and retroactively reduce his child support obligation.

{18 At the time the divorcee decree was entered, Utah Code Ann. § 15-2-1 (1999) provided, as it does now, that "[the period of minority extends in males and females to the age of eighteen years.... It is further provided that courts in divorce actions may order support to age 21." Utah Code Ann. § 15-2-1 (1999). Therefore, courts may order child support to be paid for a child up to twenty-one years of age, provided appropriate findings are entered. See Fletcher v. Fletcher, 615 P.2d 1218, 1224 (Utah 1980); Thornblad v. Thornblad, 849 P.2d 1197, 1199-1200 (Utah Ct.App.1998) (upholding trial court's continuation of child support beyond age eighteen based on substantial change of cireumstances). The courts can also enforce an agreement by the parties in a divorce action to continue support beyond that allowed by statutory law. See Despain v. Despain, 627 P.2d 526, 528 (Utah 1981); see also Balls v. Hackley, 745 P.2d 836, 837-38 (Utah Ct.App.1987) (affirming trial court's enforcement of parties' stipulation that child support would continue after eighteen years under specified circumstances).

119 Until 2000, ORS could not modify a support order unless it acted through the courts, In Karren v. State Department of Social Services, 716 P.2d 810 (Utah 1986), our supreme court held that the Public Support of Children Act then in effect gave the state agency "the power to collect unpaid support debts that acerue[ ] under existing court orders," but not "the power to modify an already existing support order. The power to modify a decree is retained by the courts under section 80-3-5." Id. at 818. Therefore, ORS could not modify support orders through administrative proceedings. Id. The holding in Karren was applied in Starks v. Department of Social Services, 750 P.2d 199, 200 (Utah Ct.App.1988). Starks also noted that because ORS's "right to reimbursement is derived from the spouse entitled to support," it could seek modification from the courts based on a "substantial change in cireumstances occur[ring] subsequent to the entry of the original divorce decree." Id. at 201.

{20 This court's opinion in Ball v. Peterson, 912 P.2d 1006 (Utah Ct.App.1996), cited by the majority, appears to be the only Utah decision addressing the impact of the Statute. In Ball, the child support order at issue was entered in 1992 and did not refer to emancipation or other events that would terminate child support. See id. at 1008. A month later, one of the children turned eighteen. Later, a second child moved in with the father (the obligor in this case) and also turned eighteen. See id. Both children turned eighteen before the 1994 amendment to the Statute, which added the provision that support be adjusted after the age of eighteen or graduation from high school, whichever occurred later. The father proportionately reduced the child support he was paying and filed a petition to modify child support, based in part on the fact that the two children were then eighteen. See id. The trial court's order assumed that the 1994 amendment was applicable in determining child support due. See id. at 1009.

121 This court held that the trial court erred in retroactively applying the 1994 amendment, which would have extended the father's obligation beyond the eighteenth birthdays of his children. See id. This court concluded that the amendment was substantive because it determined when a support obligation ends and affects a child's substantive right to support. See id. The amendment could not apply because the children turned eighteen before the amendment's effective date.

1 22 The Ball court went on to discuss the retroactivity of the trial court order. See id. at 1011. That order had not only erroneously awarded child support through the date of graduation from high school, but had also awarded an increase in child support for other unemaneipated children on the basis of a substantial change in cireumstances. This court reversed the increased child support award to the extent it was retroactive. See id. at 1011-12. The court cited Utah Code Ann. § 30-8-10.6(2) (1998), which provides that a support order may not be retroactively modified, except to the date when the petition to modify was filed and the other party was notified. See Ball, 912 P.2d at 1011-12. However, the court also examined application of the Statute and its mandate that the base child support award be reduced or adjusted. See id. at 1010. In Ball, the father's child support obligation increased, in part, because the custody formula changed from joint to sole custody. See id. at 1011. The Ball opinion uses the statutory term "automatic" to describe the adjustment when a child reaches the age of majority, id. at 1011, 1018, but does not address further what "automatic" means. In Ball, the father's petition was filed within three months of the eighteenth birthday of one of the children, followed by his former wife's counter petition, wherein she sought child support until the later dates when the children graduated from high school. The court neither discussed nor addressed retroactive modification of the child support based on the Statute, and it appears that this issue was not before the court. Moreover, the facts in Ball differ from this case, where appellant seeks retroactive adjustment of support to a date almost five years preceding the filing of his petition. Also, because the children in this case turned eighteen after the effective dates of the statute and the 1994 amendment, there is no prohibition in applying the statute as amended. As a result, Bail does not resolve the issue before us of the propriety of retroactive relief.

23 Appellant filed his petition to modify prior to when the legislature authorized ORS to conduct adjudicative proceedings to modify child support orders in some cireum-stances, including where the parties stipulate to the changes. See Utah Code Ann. §§ 62A-11-106, -304.2 (2000 & Supp. 2001). Therefore, a court petition was the only means available to modify the child support order at that time.

[ 24 According to ORS's brief, their practice and policy when the original support order is not clear, is to seek agreement of the parties to modify a child support award. If, however, the parties cannot agree and the order is ambiguous, ORS will not try "to interpret the intent of the trial court but will continue to enforce the support based upon the existing order, as it is written, until further order of the court." See also Utah Code Ann. § 78-45-7 (Supp. 2001) (providing for automatic adjustments of support when provided for in order).

T25 The issue before us in this case, I believe, is the interplay among the Statute's provision for automatic adjustment of the base child support obligation; section 80-3-10.6(2) (renumbered as Utah Code Ann. § 78-45-9.3(4) (Supp. 2001)), prohibiting retroactive modification of support orders; and section 15-2-1's allowance for support up to age twenty-one. Or, stated differently, does "automatic," as used in the Statute, allow retroactive modification of child support to the triggering date of either a child's eighteenth birthday or graduation from high school. -

126 In construing statutory language, we read statutes "as a whole, and [interpret their] provisions in harmony with other provisions in the same statute and 'with other statutes under the same and related chapters?" Lyon v. Burton, 2000 UT 19, 117, 5 P.3d 616 (citation omitted). I believe we can harmonize the various statutory provisions by holding that the Statute mandates adjustment of child support obligations, when appropriate, based on the worksheets and procedures referred to in the Statute. The adjustment is automatic when that procedure is applied. The child support guidelines are designed so that when the required information is inserted there is an automatic calculation of the base child support and the child support obligation. See Utah Code Ann. § 78-45-7.7 (Supp. 2001). However, the timing of the effectiveness of the automatic adjustment is limited by section 30-3-10.6(2). Further, it may not happen at all if the support order provides for extended support as permitted in section 15-2-1, or "otherwise provide[s] in the child support order." Utah Code Ann. § 78-45-7.10(1) (Supp. 2001).

127 In this case, the adjusted child support would be retroactive to the date ORS was notified that appellant had filed his petition to modify. This result is consistent with Utah cases holding that where a modification in child support was justified by cireum-stances such as a change in custody of children, but the petition to modify was not filed until some time after the triggering event, retroactive reimbursement was nevertheless barred. See Karren, 716 P.2d at 812-13; Starks, 750 P.2d at 201. When the order is self-executing by providing that child support will adjust in accordance with the child support guidelines and tables when the children are emancipated, there is, of course, no need to modify the order. Furthermore, we must allow for operation of section 15-2-1, which coexists with the Statute and allows for support orders other than the "automatic" adjustments resulting from application of the Statute.

128 I would therefore affirm the trial court's denial of appellant's motion for summary judgment.

      . The heading of Utah Code Ann. § 78-45-7.10 (Supp. 2001), which provides for the automatic adjustment of a child support obligation when a child reaches the age of eighteen or graduates from high school, is entitled "Adjustment when child becomes emancipated." We note that "emancipation" is a legal term of art, which has a broader meaning than the Legislature intended when referring to the effect of this statute. See Black's Law Dictionary 539 (Ith ed. 1999). However, for the sake of convenience, we use the term in the narrower sense intended by the Legislature when referring to section 78-45-7.10.

      . This statute provides:
      (1) When a child becomes 18 years of age, or has graduated from high school during the child's normal and expected year of graduation, whichever occurs later, the base child support award is qutomatically adjusted to reflect the base combined child support obligation shown in the table for the remaining number of children due child support, unless otherwise provided in the child support order.
      (2) The award may not be reduced by a per child amount derived from the base child support award originally ordered.
      (3) The income used for purposes of adjusting the support shall be the income of the parties at the time of the entry of the original order. If income was not listed in the findings or order and worksheets were not submitted, the parties may submit tax returns or other verification of the income.
      Utah Code Ann. § 78-45-7.10 (Supp. 2001) (emphasis added).

      . The trial court ruled that the Automatic Adjustment Statute is inapplicable here, concluding that the statute cannot be applied retroactively. Moreover, it concluded, implicitly in its order and expressly in its signed minute entry preceding its order, that because the divorce decree awarding child support predated the child support "guidelines" referenced in the statute, it is "impossible" to calculate the child support award according to those guidelines. Appellant challenges both conclusions.

      . Effective May 1, 2000, following Laura's and Lynsay's eighteenth birthdays, the Automatic Adjustment Statute was amended. Appellant argues we should apply the most recent version of the statute, which substituted "adjusted" for ""reduced" and deleted "lower" before "base" in subsection (1). The amendment also added subsection (3), which provides:
      (3) The income used for purposes of adjusting the support shall be the income of the parties at the time of the entry of the original order. If income was not listed in the findings or order and worksheets were not submitted, the parties may submit tax returns or other verification of the income.
      Utah Code Ann. § 78-45-7.10 (Supp. 2001). These amendments merely "'prescribe[ ] the practice and procedure or the legal machinery by which the substantive law is determined or made effective,'" Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998) (citation omitted), or "simply clarifly] the Legislature's previous intentions." Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 669 (Utah Ct.App. 1990). They do not " 'enlarge, eliminate, or destroy vested or contractual rights;'" thus, they are procedural and may also be applied retroactively. Ball v. Peterson, 912 P.2d 1006, 1009 (Utah Ct.App.1996) (citation omitted). "[If a statutory amendment is deemed procedural or remedial, then it applies to all actions-those which have accrued or are pending (pending from time of commencement until final determination), and to future actions." Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct.App.1998). Accordingly, Utah Code Ann. § 78-45-7.10 (Supp. 2001) should be applied.

      . ORS characterizes the trial court's conclusion to mean that "the automatic nature of this provision can only work if a guideline table existed and was utilized in calculating the original order."

      . Thus, as applied here, the "table" referred to in Utah Code Ann. § 78-45-7.10 (Supp. 2001) is Utah Code Ann. § 78-45-7.14 (1996), which was in effect at the time Lynsay was emancipated. There were no substantive changes between this table and the tables in effect when Laura was emancipated in 1995. Compare Utah Code Anu. § 78-45-7.14 (1996), with Utah Code Ann. § 78-45-7.14 (Supp. 1994). If the amounts in the table referred to in the newer version of the Automatic Adjustment Statute had changed from the time Laura was emancipated, the 1996 table would not be "merely procedural" because it would " 'enlarge, eliminate, or destroy vested ... [child support] rights'" since child support for Laura had already accrued in 1995. Ball, 912 P.2d at 1009 (citation omitted). Further, under these circumstances, Utah Code Ann. § 78-45-7.10 (Supp. 2001) would also be substantive as applied to Laura because it would apply a substantively amended table, and we would not be able to apply the most recent version of the statute retroactively to her.

      . The statute states:
      A child or spousal support payment under a child support order may be modified with respect to any period during which a petition for modification is pending, but only from the date notice of that petition was given to the obligee, if the obligor is the petitioner, or to the obligor, if the obligee is the petitioner.
      Utah Code Ann. § 30-3-10.6(2) (1998) (renumbered and amended as Utah Code Ann. § 78-45-9.3(4) (Supp. 2001)).

      . The Statute originally used the term "reduce" and was amended to substitute the word "adjust." The Ball court discussed the impact of the change in language. See Ball v. Peterson, 912 P.2d 1006, 1010 (Utah Ct.App.1996).


author: GREENWOOD, Judge: ORME, Judge

text:
    2002 UT App 82
    STATE of Utah, in the interest of B.B., a person under eighteen years of age. K.S. and K.S., Appellants, v. S.H. and G.H., Appellees.
    No. 20000949-CA.
    Court of Appeals of Utah.
    March 21, 2002.

      Brook J. Sessions, Harris & Carter, Provo, for Appellants.
    Leslie W. Slaugh, Howard Lewis & Petersen, Provo, for Appellees.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, Associate P.J., and GREENWOOD, and ORME, JJ.
   OPINION

GREENWOOD, Judge:

T1 KS and KS. (the Parents) are the adoptive parents of B.B. They appeal a juvenile court order asserting jurisdiction to enforce a pre-adoption visitation order issued in favor of SH. and GH., B.B.'s biological maternal grandparents (the Grandparents), after the Parents adopted B.B. The Parents also appeal the juvenile court's order awarding attorney fees to the Grandparents. Because we conclude the juvenile court lacked jurisdiction, we reverse both orders.

BACKGROUND

T2 The parental rights of B.B.'s biological mother and father were terminated after the juvenile court determined B.B. was a neglected child. The Parents and the Grandparents filed competing petitions for custody and guardianship of B.B. To resolve the dispute, the Grandparents agreed to withdraw their petition and allow the Parents to obtain eus-tody in exchange for visitation rights. The Grandparents also agreed to support the Parents' adoption of B.B. The juvenile court then entered an order establishing a visitation schedule (the Pre-adoption Visitation Order) stipulated to by the parties. Seventeen days later, the juvenile court granted the Parents' adoption petition. The adoption decree did not mention the Pre-adoption Visitation Order or visitation in any form for the Grandparents.

13 After the Parents adopted B.B., they initially allowed the Grandparents to exercise visitation as specified in the Pre-adoption Visitation Order. Out of concern for BB., however, the Parents terminated B.B.'s visits with the Grandparents. The Grandparents then filed an Order to Show Cause requiring the Parents to appear in juvenile court to show cause why they should not be held in contempt for not abiding by the Pre-adoption Visitation Order. The Parents filed a Motion to Quash the Order to Show Cause, claiming the juvenile court's jurisdiction ended when it granted the Parents' petition for adoption. The juvenile court denied the Motion to Quash and entered two separate orders: (1) Findings of Fact, Conclusions of Law & Order (the Visitation Order); and (2) Order of Attorney Fees and Judgment (the Attorney Fee Order). The Visitation Order asserted Jurisdiction and granted the Grandparents visitation rights pursuant to the stipulated Pre-adoption Visitation Order,. The Attorney Fee Order required the Parents to pay the Grandparents' attorney fees incurred for the Order to Show Cause. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

T4 The Grandparents argue that the Visitation Order is not final; thus denying this court jurisdiction. We determine whether an order is final as a matter of law. See In re M.W., 2000 UT 79,¶¶ 23-26, 12 P.3d 80. The Grandparents also contend that the Parents' appeal of the Attorney Fee Order was not adequately raised in the Parents' Notice of Appeal. We determine whether the Notice of Appeal is adequate to grant this court jurisdiction as a matter of law. See Jensen v. Intermountain Power Agency, 1999 UT 10,¶ 7, 977 P.2d 474.

15 The Parents and the guardian ad litem argue the juvenile court lacked subject matter jurisdiction to enter the Visitation Order subsequent to the adoption decree. Whether a court has subject matter jurisdiction is a question of law that we review for correctness. See Burns Chiropractic Clinic v. Allstate Ins. Co., 851 P.2d 1209, 1211 (Utah Ct.App.1993). The Parents also argue that because the juvenile court lacked subject matter jurisdiction, it should not have awarded attorney fees. In this context, we review the award of attorney fees for correctness. See Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89,¶13, 432 Utah Adv. Rep. 44.

ANALYSIS

I. Finality of the Visitation Order

16 The Grandparents argue this court lacks jurisdiction because the Visitation Order was not a final order. The Visitation Order stated, among other things, that the juvenile court had subject matter jurisdiction to enforce the Pre-adoption Visitation Order, and the Grandparents were entitled to visitation rights as set forth in the Pre-adoption Visitation Order. Subsequent to the Visitation Order, the juvenile court reviewed the Pre-adoption Visitation Order and modified it. Because of these subsequent modifications, the Grandparents argue that the Visitation Order was not a final order. We disagree.

17 The Court of Appeals has original jurisdiction over appeals from juvenile court. See Utah Code Ann. § 78-82-909(1) (1996). Rule 3 of the Utah Rules of Appellate Procedure states: "An appeal may be taken from a ... juvenile court to the appellate court with jurisdiction over the appeal from all final orders and judgments...." Utah R.App. P. 3(a) (emphasis added). Generally, "a judgment is final when it ends the controversy between the parties litigant." Bradbury v. Valencia, 2000 UT 50,¶ 9, 5 P.3d 649 (citation and quotations omitted). In In re M.W., 2000 UT 79, ¶26, 12 P.3d 80, the supreme court held that an order entered after an adjudication hearing on a petition of abuse was final for purposes of appeal. The finality was not affected by the juvenile court's retention of jurisdiction over the juvenile for further proceedings. In so holding, the Utah Supreme Court stated:

The finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts ... "A final, appealable order is one that ends the current juvenile proceedings, leaving no question open for further judicial action."
[The juvenile court continues to have jurisdiction over and periodically reviews the case, but that does not mean the ... adjudication is not final.

Id. at T1 25-26 (citations omitted). Accordingly, even though a juvenile court periodically reviews its orders, the orders may still be final for purposes of appellate review.

T8 The Visitation Order expressly held that the juvenile court had subject matter jurisdiction over B.B., and that the Grandparents were entitled to visitation rights under the Pre-adoption Visitation Order. The hearing subsequent to the issuance of the Visitation Order was merely a review of that order. The Visitation Order resolved the controversy between the parties as raised in the Order to Show Cause concerning the juvenile court's jurisdiction to enforce the Pre-adoption Visitation Order. Because the Visitation Order was final, we have jurisdiction to hear this appeal.

II. Adequacy of the Notice of Appeal

19 While conceding that the Attorney Fee Order was final for purposes of appeal, the Grandparents argue that because the Parents failed to mention the Attorney Fee Order in their Notice of Appeal, it is not properly before this court. For an appeal to be properly raised, "[the notice of appeal ... shall designate the judgment or order, or part thereof, appealed from...." Utah R.App. P. 3d). The Utah Supreme Court has held that this requirement is jurisdictional because " 'the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case."" Jensen v. Intermountain Power Agency, 1999 UT 10,¶7, 977 P.2d 474 (quoting Nunley v. Stan Katz Real Estate, 15 Utah 2d 126, 388 P.2d 798, 800 (1964)). However, "Inlotices of appeal are to be lib erally construed." Roberson v. Draney, 54 Utah 525, 182 P. 212, 213 (1919) (citations and quotations omitted); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, 11 28, 990 P.2d 945.

{10 The Parents' Notice of Appeal states that they appeal "the ruling of the court on the Motion to Quash and Objection to Setting Hearings without re-opening the file," While the notice provided by this statement is not ideal, it sufficiently notifies the Grandparents that the orders resulting from the September 6, 2000 hearing are being appealed, particularly where the orders bear the same date. Therefore, the Notice of Appeal is sufficient for this court to assume jurisdiction over the issue of attorney fees.

III, Jurisdiction of the Juvenile Court

{11 The Parents and the guardian ad litem argue the juvenile court lacked subject matter jurisdiction to enter the Visitation Order subsequent to the adoption decree. Under Utah law, the juvenile court can maintain continuing jurisdiction over B.B. until she is 21 years old, unless the court terminates jurisdiction prior to that time. See Utah Code Ann. § 78-8a-121(1) (Supp. 2001). "The continuing jurisdiction of the court terminates upon order of the court." Id. § 78-8a-121(@)(a)(i). Hence, the dispositive issue is whether a decree of adoption is an "order of the court" that terminates the juvenile court's jurisdiction. To resolve this issue, we turn first to the plain language of Utah's juvenile court statutes and adoption statutes. See State v. Fixel, 945 P.2d 149, 151 n. 2 (Utah Ct.App.1997) ("[Thhe primary consideration in statutory construction is 'to give effect to the legislature's intent. To discover that intent, this court looks first to the plain language of the statute.'" (Citation omitted.)); see also Lyon v. Burton, 2000 UT 19,¶ 17, 5 P.3d 616 ("The plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and 'with other statutes under the same and related chapters" (Citation omitted.)).

[11,12] 112 Utah's juvenile courts are creatures of statute, and thus are courts of limited jurisdiction. See In re adoption of Trimble, 16 Utah 2d 188, 398 P.2d 25, 26 (1965); In re S.L., 1999 UT App 390,¶ 52, 995 P.2d 17 (Wilkins, P.J., concurring). Because they are courts of limited jurisdiction, juvenile courts are allowed to do only what the legislature has expressly authorized. See In re S.L., 1999 UT App 390 at ¶ 52, 995 P.2d 17 (stating juvenile court "powers are necessarily limited"). Utah Code Ann. § 78-82a-104 describes the bases for the juvenile court's original jurisdiction. In this case, the juvenile court acquired jurisdiction over B.B. because she was allegedly abused and neglected. See id. § T8-Ba-104(1)(c). The juvenile court ultimately granted the guardian ad li-tem's petition to terminate the parental rights of B.B.'s biological parents. See id. § 78-Ba-411. At that point, B.B. had no legal parents and the juvenile court had jurisdiction until a permanent custody order or adoption was achieved. See id. § 78-8a-104(1)(c). Onee the juvenile court granted the Parents' petition for adoption, the original basis for jurisdiction over B.B. ceased to exist because B.B. was no longer an abused or neglected child and permanency had been achieved. See generally Utah Code Ann. §§ 78-3a-312 to -313 (Supp.2001).

$13 Based on the above statutory provisions, this court has held that visitation rights of both biological parents and grandparents end upon termination of parental rights. See In re A.B., 1999 UT App 315, 21, 991 P.2d 70 ("Grandmother's visitation rights were extinguished by operation of law when the court terminated her child's parental rights."); Kasper v. Nordfelt, 815 P.2d 747, 751 (Utah Ct.App.1991) ("[Where a child has been released [for adoption] any visitation rights of the child's natural family end with the initiation of such adoption proceedings.").

1 14 With respect to adoption in Utah, the legislature has expressly found that

(a) the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements. ...
(c) adoptive children have a right to permanence and stability in adoptive placements;
(d) adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child.

Utah Code Ann. § 78-80-4.12(2) (1996). In order to grant a petition for adoption:

(1) The court shall examine each person appearing before it ... separately, and if satisfied that the interests of the child will be promoted by the adoption, it shall enter a final decree of adoption declaring that the child is adopted by the adoptive parent or parents and shall be regarded and treated in all respects as the child of the adoptive parent or parents.
(2) The court shall make a specific finding regarding the best interest of the child, taking into consideration information ... relating to the health, safety, and welfare of the child and the moral climate of the potential adoptive placement.

Id. § 78-80-9 (Supp.2001). Consistent with the legislature's stated intent to prevent the disruption of adoptive placements, Utah adoption law states, "[Tlhe adoptive parent or parents and the child shall sustain the legal relationship of parent and child, and have all the rights and be subject to all the duties of that relationship." Id. § 78-80-10 (1996).

T15 In reading the statutes relating to child welfare proceedings and to adoptions so as to harmonize them, we conclude that the juvenile court had no jurisdiction over the Parents or B.B. after the adoption took place. The statutes share a common goal of providing stable, permanent homes for adoptive children and allowing these newly formed families to exist on the same basis as all other families. Hence, once its basis for jurisdiction ended, the juvenile court could not assume jurisdiction over B.B. until and unless the requisite statutory requirements for jurisdiction were reestablished. See Troxel v. Granville, 530 U.S. 57, 68-69, 120 S.Ct. 2054, 2061, 147 L.Ed.2d 49 (2000) ("[Slo long as a parent adequately cares for his or her children ... there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.").

T16 The juvenile court's fashioning of a conditional decree of adoption is not consistent with the above principles. Furthermore, a conditional decree of adoption would impose a duty upon the Parents that is not generally required of natural parents; namely, that the Parents either make their child available to visit with non-relatives not of their choosing or be held in contempt of court. See In re A.B., 1999 UT App 815 at n. 1, 991 P.2d 70 (noting that "[vlisitation between grandmother and the children is now at the discretion of the adoptive parents"). Therefore, because B.B.'s adoption ended the jurisdiction of the juvenile court, we reverse the juvenile court's Visitation Order.

IV. Attorney Fees

117 The Parents appeal the juvenile court's award of attorney fees. Because the juvenile court lacked subject matter jurisdiction, it follows that it lacked jurisdiction to assess attorney fees against the Parents. See Burns Chiropractic Clinic v. Allstate Ins. Co., 851 P.2d 1209, 1212 (Utah Ct.App. 1993) ("Because we reverse the trial court . we also reverse the court's grant of attorney fees."). Therefore, we reverse the award of attorney fees and order each party to pay its own attorney fees on appeal.

CONCLUSION

1 18 This court has jurisdiction because the Visitation Order is a final order and because the Notice of Appeal provided adequate notice that the appeal included the Attorney Fee Order,. The juvenile court lacked jurisdiction over this case after B.B.'s adoption, and could not grant an adoption petition conditional on visitation rights in the Grandparents. Therefore, the juvenile court could neither enforce the Pre-adoption Visitation Order after the adoption, nor assess attorney fees against the Parents. Accordingly, we reverse.

19 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

ORME, Judge

(dissenting).

120 What actually happened here is this: The adoptive parents and the grandparents, each of whom had had the care of the child at different times, filed competing adoption petitions. The parties ultimately stipulated to a resolution the trial court found to be in the child's best interest: the adoptive parents would adopt the child and the grandparents would have visitation, a schedule for which was specifically agreed to. Once they got what they wanted-adoption-the adoptive parents reneged on their agreement and withheld visitation. When this bait-and-switch was called to the trial court's attention, the court was understandably concerned about the adoptive parents' failure to adhere to their stipulated obligations and the court's order. This failure is particularly troubling in view of the trial court's explicit finding that, but for the visitation agreement, it would not have granted the adoptive parents' adoption petition. Like any court, the trial court here had jurisdiction, even though a final judgment had been entered, to enforce its prior orders. See Utah Code Ann. § 78-3a-901(1) (Supp.2001).

121 In my view, then, this is not a case about whether conditional adoption is permitted in Utah or about the legal effect of an adoption decree. It is, first and foremost, a case about whether a trial court has the power to enforce an order stipulated to by parties over whom it had jurisdiction and which order was a quid pro quo for the judgment both sides asked it to enter.

(22 Because the trial court clearly has such power and prudently exercised it in this case, I would affirm.

      . K.S. is the sister of B.B.'s biological father.

      . Similar circumstances exist in divorce proceedings when the court initially determines which parent shall have custody of the children and the visitation rights of the non-custodial parent, sub-to the court's continuing jurisdiction to modify those determinations. See Utah Code Ann. § 30-3-5 (Supp.2001).

      . To avoid contentions over this issue in the future, we strongly encourage appellants to provide in the notice of appeal the caption and date of the orders from which they appeal.

      . As permitted by Utah Rule of Appellate Procedure 24(i), the Grandparents submitted Utah Code Ann. § 30-5-2(4) (Supp.2001) as supplemental authority, claiming that it provides this court with an independent basis to affirm the juvenile court's decision. However, we do not consider this argument because the proceedings at issue were not conducted pursuant to section 30-5-2(4) and, as a result, the juvenile court did not consider any possible application of the cited statute. In addition, the Grandparents failed to raise this issue below and have not briefed the issue.

      . The Grandparents cite Cramer v. Petrie, 70 Ohio St.3d 131, 637 N.E.2d 882 (1994), for the proposition that allowing the Parents to disregard the Pre-adoption Visitation Order encourages disobedience of juvenile court orders. We find the facts of Cramer to be distinguishable. In Cramer, the court sought enforcement of a child support order that was violated prior to the child's emancipation, although the enforcement action commenced after emancipation. See id. at 883. In this case, the Order to Show Cause related to failure to comply with an order that was lawful when entered, but not lawful or enforceable after the adoption when the order was allegedly violated.