author: OPALA, J.

text:
    2001 OK 87
    Shawna K. READ, Plaintiff-Appellee/Counter-Appellant, v. Michael Ray READ, Defendant-Appellant/Counter-Appellee.
    No. 92,930.
    Supreme Court of Oklahoma.
    Oct. 16, 2001.
    As Amended Feb. 11, 2002.
    Rehearing Denied Feb. 11, 2002.

      Shannon Davis, Law Office of Shannon Davis, Tulsa, OK, for Plaintiff-Appel-lee/Counter-Appellant.
    David H. Sanders, Sanders & Sanders, Tulsa, OK, for Defendant, Appellant/Counter-Appellee.
   OPALA, J.

¶ 1 The dispositive issues tendered for corrective relief on certiorari are (1) whether an earlier pronouncement by the Court of Civil Appeals in this case, which affirmed the trial court’s denial of former husband’s motion to vacate the parties’ divorce decree, operates in a post-decree contempt proceeding to bar relitigation of alleged jurisdictional defects in that decree, and (2) whether Read’s constitutional protection against double jeopardy was violated by the proceedings to hold him in contempt a second time. -We answer the first question in the affirmative and the second in the negative.

I

ANATOMY OF LITIGATION

¶ 2 Shawna K. Read, now Shawna K. Dunn (Dunn), and Michael Ray Read (Read) were married on 16 May 1987 in Tulsa, Oklahoma. On or about 1 December 1987, a child was born of their marriage. Approximately seven months later, Read departed from the state of Oklahoma, leaving behind his wife and child who were not informed of his whereabouts.

¶3 On 26 February 1990, Dunn filed a petition for divorce in which she sought approval of service upon Read by publication. Although Dunn- stated in the petition that she had a last known Oklahoma address for Read, she also alleged that she had had no contact with him since June 1988 and was unable to determine his whereabouts despite the exercise of due diligence. A hearing on the divorce petition was held on 30 April 1990. Read did not appear and Dunn was granted a default judgment. The decree recites that Dunn had timely but unsuccessfully attempted service of summons on Read and that service by publication was authorized and proper. Read was ordered to pay child support in the amount of $403.20 per month.

¶ 4 Over the next six and one-half years Read neither challenged the divorce decree nor complied with its order to pay child support. On 6 December 1996 Dunn filed her first application for contempt (first contempt). Read responded by filing a petition to vacate the divorce decree — the legal predicate for the child support order — alleging lack of personal jurisdiction over him in the divorce proceeding. Read’s motion was denied and he appealed. The Court of Civil Appeals, Division III, affirmed and this court denied certiorari.

¶ 5 While Read’s appeal from the vacation quest’s denial was pending, a non-jury trial was held on Dunn’s contempt application. The trial court withheld a decision on the issue of contempt, but did commute the accrued unpaid child support to judgment (for the period from the date of the divorce decree through 28 April 1997 in the amount of $32,659.20 plus interest).

¶ 6 On 8 December 1998, the trial court finally reconvened to decide whether Read should be held in contempt. After hearing evidence and argument, the trial court found Read guilty and sentenced him to six (6) months in the Tulsa County Jail, subject to purge by the payment of $3,000.00. Read paid the purge fee and was not jailed. Dunn moved the trial court to reconsider the terms of the purge fee. Her motion was denied and Dunn counter-appealed.

¶ 7 As of mid-December 1998, Read had paid none of the commuted child-support ar-rearage other than the $3,000 purge fee, nor had he paid any further monthly child support. On 18 December 1998, Dunn filed a second contempt application (second contempt) covering all unpaid child support, including that which had been at issue in the first contempt proceeding. In response to Read’s argument that this constituted double jeopardy, the trial court ordered Dunn to amend her application to cover only unpaid child support not covered by the first contempt order.

¶ 8 On the day set for jury trial, Read filed another motion to dismiss the proceeding, which in addition to again raising the double jeopardy issue, also challenged the facial validity of the divorce decree on a new jurisdictional ground: lack of judicial power to impose the particular child support obligation incorporated in the divorce decree. Read based this challenge on the fact that the divorce decree granted Dunn $403.20 per month in child support when the divorce petition had requested only $180.00 per month. The trial court rejected Read’s double jeopardy defense insofar as it related to his failure to pay child support after the period of time covered by the first contempt order, but the record reflects no ruling upon Read’s new jurisdictional ground of attack upon the divorce proceeding. Instead, the trial court ruled generally that it would not entertain any attack upon the validity of the divorce decree.

¶ 9 A jury trial was then held on the second contempt application and Read was found guilty of nonsupport (for the period from 25 April 1997 through 31 January 1999). He was sentenced to six (6) months in the Tulsa County Jail, with the contempt subject to purge by the payment of $9,200.00. Unable to pay the purge fee, Read was incarcerated. A petition to this court for a writ of habeas corpus was denied. On 7 July 1999, the child support arrearage was commuted to judgment (in the amount of $59,412.28 through March 1999).

¶ 10 Read appealed from this second order of contempt, urging among other errors the trial court’s refusal to dismiss the contempt application based upon the alleged jurisdictional defects in the divorce decree. He later amended his petition in error three times in order to also seek review of (1) the attorney’s fee and costs awarded to Dunn in connection with the first contempt proceeding, (2) the attorney’s fee and costs awarded to Dunn in connection with the second contempt proceeding, and (3) the judgment for child support arrearage entered against him in the second contempt proceeding for unpaid child support plus interest through March 1999.

¶ 11 The Court of Civil Appeals, Division Four, agreed with Read, holding that “the divorce decree was unenforceable as to child support in either contempt proceeding because the decree-based child support was entered without personal jurisdiction over [Read].” Accordingly, COCA vacated the divorce decree’s determination of paternity and its order to pay child support as well as the various other judgments and orders tendered by Read for review. It then remanded the cause to the trial court to permit Read to be heard on the merits of any issue bearing on his liability for child support. COCA declined to decide Dunn’s counter-appeal pending post-remand adjudication of Read’s liability for child support.

¶ 12 We granted certiorari on Dunn’s petition and now vacate COCA’s opinion, affirm the orders tendered by Read for review, and remand the cause to COCA for a determination of Dunn’s counter-appeal.

II

ALLEGED ERRORS IN THE DIVORCE PROCEEDING ARE NO LONGER AMENABLE TO CORRECTIVE RELIEF

¶ 13 Read contends that the child support obligation — for nonpayment of which he has been twice held in contempt — is unenforceable because the divorce decree upon which it is predicated is void on the face of the judgment roll. Even if Read were correct, the procedural posture of this appeal bars him from obtaining the corrective relief he seeks.

¶ 14 We need not inquire into whether the divorce decree is or is not facially void. If it is facially valid because evidence dehors the judgment roll is necessary to establish the jurisdictional defect in its rendition, a direct attack upon it is now barred by the three-year limitation period applicable to statutory vacation proceedings. If, on the other hand, the divorce decree is void on the face of the record proper, as Read urges, an attack upon it is not barred by any limitations period. As Read correctly points out, the terms of 12 O.S. Supp.1993 § 1038 provide that a facially void judgment may be vacated at any time. This does not mean, as Read would have us hold, that a facially void judgment may be subjected to successive attacks, direct or collateral. Rather, § 1038 merely provides that the passage of time does not operate to bar a quest to vacate a facially void judgment.

¶ 15 The law affords no more than a single opportunity to litigate a disputed question of a tribunal’s jurisdiction. This “whack” at the divorce decree was taken by Read in his unsuccessful effort to vacate that judgment in 1996. Read appealed from that adverse decision and the Court of Civil Appeals, Division Three, affirmed. This court denied certiorari and, although the ease raised a federal constitutional issue, Read did not seek review by the United States Supreme Court. The trial court’s order denying Read’s petition to vacate now stands as a complete bar to further attack upon the divorce decree under the doctrine of res judica-ta as well as that of settled law of the case. The divorce decree’s validity is no longer subject to relitigation in the trial court nor is it amenable to review on appeal or certiorari.

¶ 16 The procedural straitjacket in which Read finds himself with respect to corrective relief from the divorce decree for lack of personal jurisdiction likewise bars him from challenging the decree for lack of the third element of jurisdiction — judicial power to render the particular decision. The doctrine of res judicata bars relitigation not only of those issues raised and decided but also of those issues which could have been raised and were not. Res judicata applies to questions of jurisdiction. Moreover, an appellate court’s decision settles not only all questions actually tendered for review but also all questions existing in the record and involved in the decision by implication. Read did not raise the judicial-power aspect of jurisdiction when he sought to vacate the divorce decree. The trial court’s denial of the vacation quest reflected its view that the divorce decree in talo complied with due process. The appellate decision affirming the trial court did likewise. The divorce decree may no longer be challenged on this jurisdictional basis any more than it may be challenged for lack of personal jurisdiction.

¶ 17 Were we nevertheless to entertain Read’s argument that the trial court in the divorce proceeding did not have the judicial power to impose the particular child support obligation set forth in the decree, Read still would not prevail. He argues that jurisdiction to enter the particular order was absent because (1) the decree’s requirement that Read pay $403.20 per month when Dunn had asked for only $180.00 per month went beyond the issue presented to the trial court for determination, and (2) the divorce petition failed to comply with the provisions of 12 O.S.1991 § 2004(C)(3)(c)(l), which require that when the recovery of money is sought, notice given by publication must state the total amount sought to be recovered.

¶ 18 Read is wrong on both counts. By force of statute, child support— its award and amount — is always within the issues framed by a divorce petition where the parties have minor children. The appropriate amount of support is left to the sound judicial discretion of the trial judge. That discretion cannot be abridged by external restraints such as an agreement between the parties. Similarly, the trial court’s discretion is not limited by the amount of child support requested in a divorce petition’s prayer for relief. If the trial court erred in the amount of child support due from Read, the error was one of law, not of jurisdiction, which should have been raised on appeal or in a vacation proceeding brought within the three (3) year limitation period. LaBellman v. Gleason & Sanders, Inc., cited by Read, has no bearing upon the jurisdiction of the trial court to award child support in a divorce proceeding.

¶ 19 Read’s contention that the notice in the divorce proceeding failed to comply with statutory requirements is also without merit. A divorce proceeding in which child support is an issue is not a common-law action for the recovery of money. Hence, the notice requirement of 12 O.S.1991 § 2004(C)(3)(c)(l) is not a jurisdictional prerequisite for a valid child support order.

¶ 20 Read cites Bailey v. Campbell, Southwestern Surety Insurance Co. v. Farriss, and Hinkle v. Jones in support of his contention that the law sanctions successive attacks upon a facially void judgment. Bailey is easily distinguishable. In that case, we held that a trial court does not have the judicial ‘power after an automatic stay has issued to entertain a bankruptcy debtor’s vacation motion. Hence, an order denying such a motion is void on its face — a nullity— and does not operate to bar a bankruptcy trustee’s subsequent attack on the default judgment. In the instant case, the trial court had the judicial power to enter its order denying Read’s motion to vacate and that order properly stands as a bar to a subsequent attack on the divorce decree.

¶ 21 Southwestern Surety and Hinkle which appear to support Read’s proposition that successive motions to vacate a facially void judgment or order are authorized by 12 O.S. Supp.1993 § 1038, can only be viewed as aberrational in light of more recent Oklahoma jurisprudence that clearly prohibits successive attacks on a facially void judgment. To the extent that those cases deviate from the rule recently stated in White v. White and similar cases, they have been implicitly overruled and are now explicitly disapproved.

Ill

READ WAS NOT PLACED IN DOUBLE JEOPARDY BY THE SECOND CONTEMPT PROCEEDING

¶ 22 Read argues that his constitutional protection against double jeopardy, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, has been violated because he was tried and sentenced in the second contempt proceeding for the same “offense” for which he had already been tried and sentenced in the first contempt proceeding. The double jeopardy proscription affords protection from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. Assuming arguendo that the double jeopardy guarantee applies to a civil contempt proceeding, our examination of the record reveals nothing that would establish a violation of any of the three prongs of that guarantee. The two contempt orders address the nonpayment of child support during almost completely distinct and separate periods of time. The first contempt order covered the period from 30 April 1990 through 30 April 1997; the second covered the period from 25 April 1997 through 31 January 1999. Any overlap between the two orders is de minimus and does not implicate the double jeopardy guarantee.

IV

THE CAUSE SHOULD BE REMANDED TO THE COURT OF CIVIL APPEALS FOR CONSIDERATION OF THE ISSUE RAISED IN DUNN’S COUNTER-APPEAL

¶23 Dunn also filed a counter-appeal in this case for review of the order setting the purge fee in the first contempt proceeding. Although the order finding Read guilty in the first contempt proceeding was not among the orders for which Read sought corrective relief, COCA nevertheless vacated that order. Because of that decision, COCA declined to review whether the purge fee was proper. It held that corrective relief is unavailable until the issue of Read’s paternity and liability for child support shall have been determined. Today’s pronouncement vacating COCA’s opinion restores the issue raised by Dunn’s counter-appeal. When this court vacates the opinion of the Court of Civil Appeals, it may address any issue properly raised in the appeal or remand the cause to the Court of Civil Appeals for that court to address that issue. Whether the trial court

erred in setting the purge fee should be reviewed in the first instance by the Court of Civil Appeals. We hence remand the cause to that court to address this issue.

y

SUMMARY

¶24 Read seeks our pronouncement that decree-imposed child support cannot be enforced against him by means of contempt because the child-support obligation’s legal predicate — the parties’ divorce decree — is void on the face of the judgment roll. This precise issue has previously been determined against Read and he is forever barred from seeking corrective relief on this basis. His contention that the proceedings below placed him in double jeopardy is likewise legally unsupportable. The cause is remanded for COCA’s disposition of Dunn’s counter-appeal for review of the purge fee set in the first contempt proceeding.

¶ 25 THE COURT OF CIVIL APPEALS’ OPINION IS VACATED; THE NISI PRIUS ORDERS TENDERED BY FORMER HUSBAND FOR REVIEW ARE AFFIRMED, AND THE CAUSE IS REMANDED TO THE COURT OF CIVIL APPEALS WITH INSTRUCTIONS TO ADDRESS THE ISSUE RAISED IN FORMER WIFE’S COUNTER-APPEAL.

¶ 26 HARGRAVE, C.J., and HODGES, LAVENDER, OPALA, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur;

¶ 27 WATT, V.C.J., dissents;

¶ 28 KAUGER, J., concurs in part and dissents in part.

      . Read also seeks review of the trial court's denial of his request to undergo a paternity test and its rulings on a series of motions in limine. Because the Court of Civil Appeals found the jurisdictional issue dispositive, it did not address these contentions. When this court vacates the opinion of the Court of Civil Appeals, it may address any issue properly preserved and briefed in the appeal. Rule 1.180, Oklahoma Supreme Court Rules, 12 O.S. Supp.1999, Ch. 15, App. 1. Today’s pronouncement that Read is barred from attacking the validity of the divorce decree renders a paternity test irrelevant. As for the motions in limine, Read’s brief fails to specify with citation to authority why any particular one of the court's rulings was erroneous. Where an assignment of error lacks any citation of authority, it need not be considered. S.W. v. Duncan, 2001 OK 39, ¶ 31, 24 P.3d 846, 857; Mills v. Grotheer, 1998 OK 33, ¶ 15, 957 P.2d 540, 544. Instead, Read argues generally that the error was in the cumulative effect of the court’s rulings, which was to deprive him of any defenses. This contention is without merit. Read cites no authority, and we are aware of none that requires a trial court to admit evidence which is otherwise inadmissible solely to provide a litigant a claim or defense to be presented at trial.

      . Shawna K. Read v. Michael Ray Read, Sup.Ct. No. 89,225 (an unpublished opinion by the Court of Civil Appeals, Div. Ill, decided 10 February 1998).

      . Shawna K. Read v. Michael Ray Read, supra note 2, cert. denied, 15 June 1998.

      . The hearing, which had begun on 25 April 1997, was continued for twenty months — until 8 December 1998 — pending the outcome of certain other proceedings brought by Read to challenge the nisi prius court's power to hold him in contempt.

      . By statute and court rule, contempt may be purged and incarceration avoided by (1) making all future child support and child-support-related payments and (2) paying the full amount of any child support arrearage, or some portion of the arrearage, in a lump sum, if possible, and (3) making monthly payments on the remaining ar-rearage if the full amount of the arrearage is not paid in a lump sum. See 21 O.S.1991 § 566 and Rule 8.3, Rules for the District Courts of Oklahoma, 12 O.S.1991, ch.2, App.

      . “[T]he jurisdiction necessary to empower a court to render a valid judgment is of three types: (1) Jurisdiction of the parties; (2) jurisdiction of the general subject matter; and (3) jurisdiction of the particular matter which the judgment professes to decide.” La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, ¶ 8, 418 P.2d 949, 953.

      . The trial court reserved a ruling on the double jeopardy defense insofar as it related to nonpayment of child support for the period of time already covered by the judgment in the first contempt proceeding — from the date of the divorce decree through 28 April 1997. The record does not reflect that the court ever issued a ruling on that matter, but its contempt order did not cover the earlier period of nonpayment.

      . This ruling came in the context of a pre-trial argument on a motion by Read to stay the proceedings for five days to allow him to apply for a writ of prohibition. That motion was denied.

      . This court’s order of 14 April 1999 denying the writ succinctly states:
      "The judgment which stands as a bar to the petitioner’s plea for relief in this court is not the 1990 divorce decree, facially void or valid, but the subsequent ruling on his 1997 petition to vacate, which declined to set aside the 1990 divorce decree, which was affirmed on appeal in cause no. 89,225 and was left undisturbed by this court's vote on certiorari.”

      . The parties' appeals were consolidated by this court’s 12 May 1999 order.

      . A post-decree contempt proceeding for unpaid child support culminates in a single order made up of the finding of contempt, a sentence of incarceration subject to purge, and a commutation of the unpaid child support to judgment. That single order stands or falls as a unit. Today’s pronouncement that Read is barred from the corrective relief he seeks applies as much to the “arrearage judgment” as to the finding and sentence of contempt. The apparent overlapping of the two "arrearage judgments” in this case, in which the commutation granted in the second contempt proceeding includes within it unpaid child support already commuted to judgment in the first contempt proceeding, is not an error amenable to corrective relief in this appeal. Of course, Dunn may not obtain a double recovery. Read is entitled in a proper post-decree proceeding to a credit toward one "arrearage judgment” for any amounts paid on the other.

      . The provisions of 12 O.S.1991 § 2004 (C)(3)(f) state:
      "A party against whom a default judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within three (3) years after the filing of the judgment or order, have the judgment or order set aside in the manner prescribed in Sections 1031.1 and 1033 of this title....”
      See Pettis v. Johnston, 1920 OK 224, 190 P. 681, 688 and Scoufos v. Fuller, 1954 OK 363, ¶ 33, 280 P.2d 720, 723, holding that a judgment valid on its face may not be attacked after the passage of three (3) years. Read did not attack the 30 April 1990 divorce decree until 1997, at which time he was limited to attacking the decree on the grounds of facial invalidity under the provisions of 12 O.S. Supp.1993 § 1038. See infra note 15 for tire pertinent provisions of § 1038.

      . The record proper or judgment roll consists of "the petition, tire process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; ...” 12 O.S.1991 § 32.1; Elliott v. Guthrie, 1986 OK 59, ¶ 7, n. 8, 725 P.2d 861, 863, n. 8; Mayhue v. Mayhue, 1985 OK 68, ¶ 8, n. 17, 706 P.2d 890, 895, n. 17.

      . The pertinent provisions of 12 O.S. Supp.1993 § 1038 state: "A void judgment, decree or order may be vacated at any time on motion of a party, or any person affected thereby.”

        . Corliss v. Davidson & Case Lumber Co., 1938 OK 475, ¶ 8, 84 P.2d 7, 9 ("The plaintiff emphasizes the oft-repeated assertion that a void judgment may be vacated at any time, and that it is always subject to attack. But that principle does not mean that the question whether a judgment is void may repeatedly be litigated by the parties. The principles of 'another action pending’ and res judicata are still applicable to actions adjudicating whether or not the judgment is void. In other words, granting that a void judgment is subject to attack at any time, if parties litigate that very question (that is, whether it is void or should be voided), then the question is settled and it is no more the subject of repeated and vexatious suits between the same parties than is any other disputed question of fact or law. If this were not the case, then there would be no end to actions between the same parties to determine the validity of a former judgment.”). See also Bruce v. Miller, 1960 OK 266, ¶ 24, 360 P.2d 508, 512; Brett v. Fielder, 1928 OK 348, ¶ 7, 277 P. 216, 217-18; Brooks v. Baltz, 2000 OK 73, ¶ 8, 12 P.3d 467, 469 ("[A] District Court determination of a jurisdictional issue [supports] a plea of res judicata.”).

      . A litigant who is deemed aggrieved by a juris-dictionally defective decision is allowed but a single “whack” (attack) at any facially void target. Stites v. DUIT Constr. Co., 1995 OK 69, ¶ 10, n. 13, 903 P.2d 293, 298, n. 13; Salyer v. Nat’l. Trailer Convoy, Inc., 1986 OK 70, ¶ 4, 727 P.2d 1361, 1363; Depuy v. Hoeme, 1989 OK 42, ¶ 15, 775 P.2d 1339, 1345; White v. White, 1980 OK 31, ¶ 3, 607 P.2d 700, 703 (Opala, J„ concurring in result); Bruce, supra note 16 at 511-512; Brett v. Fielder, supra note 16 at 217.

      . A judgment is entitled to preclusive effect only if the party against whom it is interposed has had a full and fair opportunity to litigate the claim or critical issue. Nealis v. Baird, 1999 OK 98, ¶ 51, 996 P.2d 438, 458;Veiser v. Armstrong, 1984 OK 61, ¶ 16, n.21, 688 P.2d 796, 802, n.21. That opportunity must be afforded in order to meet the minimum standards of due process, both state and federal. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶41, 987 P.2d 1185, 1201. Despite Read’s insistence to the contrary, he was given a full and fair opportunity to litigate the jurisdictional issue. It was made available to him by the vacation proceeding, in which he fully participated. The order that denied his motion to vacate the divorce decree — and not that decree itself — stands entitled to preclusive effect.

      . White v. White, supra note 17, at ¶ 12, at 702 ("Principles of res judicata apply to questions of jurisdiction as well as other issues.”); Corliss v. Davidson & Case Lumber Co., supra note 16, at ¶ 8, at 9; Brett v. Fielder, supra note 16, at ¶ 7, at 217-18. In its broadest sense, the term res judi-cata encompasses four types of preclusion: bar, merger, collateral estoppel, and direct estoppel. Moch v. East Baton Rouge Parish School Board, 548 F.2d 594, 596 (5th Cir.1977). Hence, the use of the term res judicata without an explanatory aside is potentially confusing. Accordingly, the American Law Institute has replaced it with the more accurate and precise terms — claim preclusion and issue preclusion. RESTATEMENT OF JUDGMENTS (SECOND) § 74; Allen v. McCurry, 449 U.S. 90, 94, n. 5, 101 S.Ct. 411, 415, n. 5, 66 L.Ed.2d 308 (1980); Underside v. Lathrop, 1982 OK 57, ¶ 6, n. 8, 645 P.2d 514, 517, n. 8. The new terminology has been gaining acceptance and is increasingly used in modern decisions in place of the older terms. The principle of res judicata as claim preclusion teaches that a final judgment on the merits of an action precludes the parties from relitigating not only the adjudicated claim, but also any theories or issues that were actually decided, or could have been decided, in that action. McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 7, 979 P.2d 252, 255-56; Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887, 896; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶ 12, 946 P.2d 662, 667; Veiser v. Armstrong, 1984 OK 61, ¶ 8, n. 9, 688 P.2d 796, 800 n. 9.

      . The settled-law-of-the-case doctrine operates to bar relitigation of issues that have been settled by an earlier appellate opinion in that case. Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, ¶ 11, n. 27, 796 P.2d 276, 283, n. 27; Mobbs v. City of Lehigh, 1982 OK 149, ¶ 6, n. 5, 655 P.2d 547, 549, n. 5; Mullins v. Ward, 1985 OK 109, ¶ 13, n. 13, 712 P.2d 55, 61, n. 13.

      . Panama Processes, S.A. v. Cities Service Co., supra note 19 at ¶ 39, at 291 ("[R]es judicata in the Anglo-American sense bars not only the defensive theories actually interposed [in an earlier action], but any defenses that could have been raised in that actionfcitations omitted]”).

      . White v. White, supra note 17 at ¶ 12, at 702; Consolidated Motor Freight Terminal v. Vineyard, 1943 OK 358, ¶ 19, 143 P.2d 610, 614.

      . Handy v. City of Lawton, 1992 OK 111, ¶ 13, 835 P.2d 870, 873.

      . That statute provides in pertinent part: "When the recovery of money is sought, it is not necessary for the publication notice to state the separate items involved, but the total amount that is claimed must be stated.”

      . The authority of the trial court to impose child support is set out in the provisions of 43 O.S. 1991 § 112, which state:
      "A petition or cross-petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are minor children of the marriage, the court:
      1. Shall make provision for guardianship, custody, medical care, support and education of the children; ...”

      . Ahrens v. Ahrens, 1917 OK 619, 169 P. 486, 487 (a married woman cannot, by a separate contract, relieve her husband of the obligation to support his minor children); State Dept. of Human Services ex rel. K.A.G. v. T.D.G., 1993 OK 126, ¶ 9, 861 P.2d 990, 994 (an unwed mother may not, through settlement agreement, relieve a putative father of his obligation to support his minor child); Parkey v. Parkey, 1962 OK 110, ¶ 18, 371 P.2d 711, 714.

      . Donahoe v. Alcorn, 1940 OK 348, ¶ 13, 108 P.2d 786, 788 ("In view of the statutory duty imposed on the court to provide for the support of minor children and the previous decisions of this court recognizing the analogous power of the court to award alimony against a defaulting defendant in granting a divorce, even though specific request for such relief has not been included in the petition, we conclude, and hold, that the court may, at the time of granting a divorce against a defaulting defendant, enter judgment providing for the support of minor children, even though the relief thus granted is not pursuant to or in accord with a specific prayer of the petition, (emphasis added) The defaulting defendant is presumed to be cognizant of the duty imposed by law upon the court in this respect.").

      . 1966 OK 183, 418 P.2d 949. In La Bellman, the trial court entered a judgment foreclosing upon property other than that described in the petition and the court held that the trial court had exceeded its jurisdiction in doing so.

      . 1991 OK 67, 862 P.2d 461.

      . 1926 OK 103, 247 P.392.

      . 1937 OK 190, 66 P.2d 1073.

      . In Southwestern Surety v. Farriss, supra note 29, the district court granted Southwestern Surety a lien by subrogation on allotments of five Indian children despite the fact that federal law specifically prohibited any court other than a probate court from alienating the allotments of Indian minors. Seven years later, when two of the minors reached adulthood, they petitioned the district court to vacate the decree on the grounds that it was outside the issues raised by the pleadings and was void for lack of power in the district court to render it. Their petition to vacate was denied and no appeal was lodged. Southwestern Surety filed an action to enforce its lien. The trial court denied foreclosure and Southwestern Surety appealed. The court held that the denial of the motion to vacate the original decree did not bar the Indian landowners from raising the issue of jurisdiction again in the foreclosure action as a defense against enforcement of the original decree.

      . In Hinkle v. Jones, supra note 30, a mortgagee filed an action to foreclose a real estate mortgage against three defendants. Two of the defendants were the former owners of the land who were personally liable for the mortgage debt and the plaintiff sought a personal judgment against them. The third defendant (Keahey) was the grantee of the two original owners. Keahey had no personal liability on debt and the plaintiff did not ask for a money judgment against him. Nevertheless, the trial court entered a personal judgment against Keahey. At the next term of court, Keahey moved to vacate the judgment. None of the grounds alleged was jurisdictional. That motion was denied. Apparently, no appeal was filed. The land was sold and the deficiency judgment was assigned to Hinkle. Execution was issued against Keahey and he moved to quash the execution on the grounds that the original judgment had been entered without notice while an answer was on file and that the original money judgment and the deficiency judgment were both void insofar as they rendered a personal money judgment against him. He asked that both the original and deficiency judgments be vacated. This motion was also denied and no appeal was lodged. When an order for a hearing on assets was issued, Keahey filed a third motion to vacate on the grounds that the judgment was void on its face and the court lacked jurisdiction to render it because it was outside the issues formed by the pleadings. This motion was granted. Hinkle appealed, arguing that the court erred in granting the motion to vacate because previous motions to vacate had been denied and not appealed. Keahey, they argued, was barred from attacking the judgment again. The Oklahoma Supreme Court disagreed, stating,
      "This proposition is in the nature of the plea of res adjudicata, which, in view of the prior decisions of this court, would not and could not be good, as the court holds that this is a judgment void on its face, and the fact that the defendant Keahey did not appeal from the orders overruling prior motions to vacate did not affect his rights to file subsequent motions for the reason, as set out in the statute, that a void judgment may be attacked at any time by a party affected thereby.” Id. at ¶ 28, at 1076-77.

        .White v. White, supra note 17.

      . The Double Jeopardy Clause of the Fifth Amendment, U.S. Const., provides in pertinent part: “No person shall be ... subject for the same offense to be twice put in jeopardy of life or limb; ...” The protections of the Fifth Amendment are made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311 (1984). The state counterpart to the Fifth Amendment offers identical protection. See the terms of Art. 2, § 21, Okla. Const., which provide in pertinent part that “No person ... after having been once acquitted by a jury, [shall] be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

      . North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), (overruled on other grounds); Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Johnson v. State, 1980 OK CR 45, ¶ 15, 611 P.2d 1137, 1141; Marutzky v. State, 1973 OK CR 398, ¶ 6, 514 P.2d 430, 431.

      . Because we base our holding regarding Read’s double jeopardy argument upon the absence of any significant record evidence of overlap between the two contempt orders, we need not address what might otherwise be the threshold question of whether the double jeopardy guarantee applies to a civil contempt proceeding.

      . If the child support obligation is viewed as accruing each month on a daily basis, then there would in fact be a five day overlap between the two orders. In light of the substantial, non-overlapping periods of time covered by the two orders, we view this five-day overlap as insufficient to raise double-jeopardy concerns. The second contempt order unmistakably rests upon many months during which Read did not pay child support, for which he was not held in contempt the first contempt proceeding.

      . Boren v. Thompson & Associates, 2000 OK 3, ¶ 26, 999 P.2d 438, 448; Beets v. Metropolitan Life Ins. Co., 1999 OK 15, ¶ 4, 995 P.2d 1071, 1078 (Opala, J., dissenting). The provisions of Rule 1.180(b), Rules of the Supreme Court, 12 O.S. Supp.1999 Ch. 15, App. 1 state:
      "Issues not presented in the petition for certio-rari may not be considered by the Supreme Court. Provided, however, if the Court of Civil Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may — should it vacate the opinion of the Court of Civil Appeals — address such undecided matters or it may remand the cause to the Court of Civil Appeals for that Court to address such issues. The case will then be decided on the reviewable issue or issues presented in the briefs theretofore filed, unless for good cause the filing of additional briefs be then allowed. The Supreme Court may — should it vacate the opinion of the Court of Civil Appeals — address any issue properly raised in the appeal or on certiorari. Hough v. Leonard, 1993 OK 112, 867 P.2d 438 (Okla. 1993).”


source: Caselaw Access Project

author: SUMMERS, J. .

license: Public Domain

text:
    2002 OK 79
    Melvin L. TUBBS, Plaintiff/Appellant, v. STATE of Oklahoma, ex rel., The TEACHERS’ RETIREMENT SYSTEM OF OKLAHOMA, Defendant/Appellee.
    No. 95,968.
    Supreme Court of Oklahoma.
    Oct. 15, 2002.

      Joe B. Reeves, Lawton, for Appellant.
    John McCormick, Asst. Attorney General, Oklahoma City, for Appellee.
    Lydia Lee, Oklahoma City, for Amicus Curiae, Oklahoma Public Employees Retirement System.
   SUMMERS, J. .

¶ 1 The plaintiff, Tubbs, retired as a school teacher and subsequently was divorced. In dividing the marital property the divorce court entered an order concerning Tubbs’ retirement benefits that the Teachers’ Retirement System declined to follow. He appealed to the District Court of Oklahoma County, which affirmed the Board’s order, and then appealed to this Court. We conclude that the Teachers’ Retirement System erred in not following the divorce court’s order, and direct that the District Court render judgment for Tubbs upon remand.

¶ 2 Tubbs’ career with the Lawton Public Schools lasted from August 1967 until May 1996. He was a member of the Oklahoma Teachers’ Retirement System. He married in 1989, and upon his retirement in 1996 he named his wife as beneficiary of certain retirement benefits. By designating his wife as a beneficiary the sum of $107.04 per month was deducted from his monthly retirement benefit.

¶ 3 Tubbs and his wife were divorced by a decree of the District Court of Comanche County on March 3, 2000. That decree included the following award to Tubbs:

All right title and interest in and to plaintiffs retirement and pension benefits from the Oklahoma State Teachers Retirement System; and provided further that any survivor benefits previously designated for the defendant are hereby terminated by this decree under the provisions of 15 O.S. 178(A) and Oklahoma Retirement System Rule 715:10-9-7;

O.R. at 132.

A few weeks after the decree the District Court of Comanche County issued “a qualified domestic order.” The order included the following:

The Member is awarded all right, title and interest in and to member’s retirement and pension benefits from the Oklahoma State Teachers Retirement System and all benefits previously designated for the defendant are hereby terminated under the provisions of 15 O.S. 178(A) and Oklahoma Teacher Retirement System Rule 715:10-9-7 and § 17-109(B)(5)(c).

O.R. at 137.

The Teachers’ Retirement System (TRS), through its Executive Secretary, declined to follow the order of the District Court. Tubbs protested the decision and requested a hearing.

¶4 The hearing officer issued proposed findings of fact and conclusions of law. He concluded that a “death benefit” could be changed by Tubbs or the District Court, but that “survivor benefits” to be paid in the future to Tubbs’ spouse during her life in the event he predeceased her could not be altered by the District Court. In September of 2000 a hearing was held before the Board of Trustees of the Teachers’ Retirement System where the Board accepted the hearing officer’s proposed findings and conclusions.

¶ 5 Tubbs then appealed the decision of the Board to the District Court of Oklahoma County. The District Court found no error in the administrative proceedings, and issued an order affirming the order of the Board of Trustees. Tubbs appealed the order of the District Court to this Court, and we retained the appeal.

¶ 6 The parties in effect urge and counter-urge two propositions. The first would have us determine whether a statute enacted in 1987, 15 O.S.1991 § 178(A) causes or does not cause certain Teachers’ Retirement benefits to be extinguished in the event of divorce. The second is whether a district court has the power to award the value of a spouse’s survivor’s annuity benefit to the other spouse, a member of the Teachers’ Retirement System, in a divorce. We answer the second proposition in the affirmative. For that reason, we need not concern ourselves further with the applicability of section 178(A), and whether it applies in the absence of the death of the party to a contract providing death benefits.

¶ 7 In May of 1996 when Tubbs retired he was required to select one of five retirement plans. They were: The Maximum Retirement Plan, Retirement Option 1, Retirement Option 2, Retirement Option 3, or Retirement Option 4. Two of these plans, “Option 2” and “Option 3” provide for monthly benefits payable to the spouse of the retired member after the member dies. O.A.C. 715:10-15-10(3),(4) (1996). When a member of the retirement system retires and does not select either Option 2 or Option 3, and the member is married, the member’s spouse must consent to the retirement option selected by the member. Upon retirement Tubbs selected Option 3, and his wife obtained a survivor’s benefit.

¶ 8 The value of the survivor’s benefit in the Teachers’ Retirement System is capable of calculation when the teacher retires. Indeed, the System is required to make this calculation when determining the amount subtracted from the member’s monthly benefit for the purpose of funding the survivor’s benefit for an Option 3 plan.

The reduction in the monthly payment, while not as great as the Option 2 plan, still requires a substantial reduction because two people are protected for the life of both individuals. The actual reduction is based on actuarial tables developed for this purpose and approved by the Board of Trustees. The age of the spouse is an important factor in computing this benefit.

O.A.C. 715:10-15-10(4) (1996).

Thus, after the member’s retirement the member’s spouse possesses an easily identifiable and calculable economic interest in the member’s Option 3 plan. Is the survivor’s interest a type of property that a district court may divide between the parties to a divorce? We believe it is, as we now explain.

¶ 9 A district court possesses power in a divorce proceeding to divide the marital estate. Larman v. Larrnan, 1999 OK 83, ¶ 17, 991 P.2d 536. Generally, a pension right burdened with a conjugal interest is a type of marital asset divided between the parties to a divorce. Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, 931. We have said that “absent a specific statutory exception ... a trial court may consider the pension as jointly acquired, make a grant of that property to one spouse and then make a compensating award to the other spouse.” Rice v. Rice, 762 P.2d, 925, 926-927. In Rice we affirmed that part of the divorce decree that awarded a retired police officer his retirement funds and a cash award to the wife to offset the value of her interest in the pension. Further, it is not uncommon for a pension or retirement plan to provide for benefits to a survivor. See, e.g., Pulliam v. Pulliam, 1990 OK 71, ¶¶ 6-7, 796 P.2d 623, 624, (plan included survivor’s benefits).

¶ 10 The Teachers’ Retirement System relies upon Ozment v. Ozment, 2000 OK CIV APP 52, 11 P.3d 635, for the proposition that a retiree’s selection of a retirement option cannot be altered by a divorce proceeding because that selection is irrevocable. Ozment is a non-precedential opinion and does not address a divorce decree after retirement. The argument made by the Teachers’ Retirement System based on Ozment is essentially thus:

A retiree elects a retirement option.
A retiree’s election of a retirement option is irrevocable.
Thus, a district court is without power to alter an irrevocable option.

The Retirement System would equate a retiree’s power to elect an option with a district court’s power to make division of marital property. With this we do not agree, as will be explained.

¶ 11 The statutory authority, 70 O.S.Supp. 1999 § 17-109, states that a district court may issue a qualified domestic order. A qualified domestic order for the purpose of the Teachers’ Retirement System is:

... an order issued by a district court of this state pursuant to the domestic relation laws of the State of Oklahoma which relates to the provision of marital property rights to a spouse or former spouse of a member or provision of support for a minor child or children and which creates or recognizes the existence of the right of an alternate payee, or assigns to an alternate payee the right, to receive a portion of the benefits payable with respect to a member of the Retirement System.”

70 O.S.Supp.1999 § 17 — 109(B)(2), emphasis added.

Thus a district court has the authority to determine the payees of the retirement benefit, regardless of whether the non-member spouse is listed as a payee in a particular retirement option.

¶ 12 Whenever a divorce occurs, either before or after retirement, a district court possesses the power to award the respective spouses the property to which each of them is entitled. Pension benefits accumulated during the marriage as jointly acquired property are subject to equitable division in a divorce. Jackson v. Jackson, 2002 OK 25, ¶ 13, 45 P.3d 418, 426. Property rights held by both the member and the member’s spouse are not destroyed by the retirement of the member. Of course, after retirement the nature of the property interest is different, but that difference does not limit a district court in awarding each spouse his or her equitable share of the retirement benefit.

¶ 13 A district court’s determination of respective property interests in retirement benefits, however, is guided and limited by statute. These limitations are included in the statute setting forth the district court’s statutory authority to create alternate payees and divide retirement benefits. For example, § 17-109 states that

A qualified domestic order meets the requirements of this subsection only if such order:
a. does not require the Retirement System to provide any type or form of benefit, or any option not otherwise provided under state law as relates to the Retirement System,
b. does not require the Retirement System to provide increased benefits,

70 O.S.Supp.1995 § 17-109(6)(a) & (b).

The Teachers’ Retirement System in our case today urges that a District Court may not issue a qualified domestic order after a member’s retirement date that alters the survivor’s benefit because such would provide an option not granted by state law, i.e., a change in the irrevocable selection previously made by Tubbs.

¶ 14 This characterization by the Teachers’ Retirement System is incorrect. Tubbs is currently paying $107.04 monthly by a deduction from his Option 3 retirement benefit to the Teachers’ Retirement System to fund the survivor’s benefit, a property interest possessed by his spouse. The order of the District Court of Comanche County requires this deduction to stop. The Teachers’ Retirement System has not put forward any evidence that the $107.04 deduction was calculated in some manner that its cessation would result in making Tubbs’ monthly benefit in excess of the actuarial value of his retirement allowance.

¶ 15 The Retirement System argues that selection of a retirement plan is irrevocable, and thus a district court cannot change a survivor’s benefit. In support of this anti-revocation argument the system relies upon language in 70 O.S. § 17-105(8)(c) that was first added to that statute approximately two years after Tubbs retired. In May of 1996 when Tubbs retired the relevant language stated:

Option 3. A member receives a reduced retirement allowance for life. Upon the death of the member one-half (⅜) of the retirement allowance paid the member shall be continued throughout the life of the designated beneficiary, who must be a spouse. A written designation of a beneficiary must be duly acknowledged and filed with the Board of Trustees at the time of the member’s retirement; or

70 O.S.Supp.1995 § 17 — 105(8)(c).

At the time of the divorce decree, in March of 2000, the 1999 version of the statute was in effect and stated:

Option 3. A member receives a reduced retirement allowance for life. Upon the death of the member one-half (1/2) of the retirement allowance paid the member shall be continued throughout the life of the designated beneficiary. A written designation of a beneficiary must be duly acknowledged and filed with the Board of Trustees at the time of the member’s retirement and cannot be changed after the effective date of the member’s retirement; or

70 O.S.Supp.1999 § 17-105(8)(c), (emphasis added).

Assuming, but not deciding, that the 1999 version applies to Tubbs, this language does not mean that the selected option cannot be changed under any circumstance. For example, that same statute states, in both its 1995 and 1999 versions, that the Option 2 or Option 3 plan selected by a retiree would be changed to a different plan when a retiree’s spouse predeceased the retiree.

If the named beneficiary under Option 2 or 3 dies at any time after the member’s retirement date, but before the death of the member, the member shall return to the retirement benefit, including any post retirement benefit increase the member would have received had the member not selected Option 2 or 3 of this subsection.

70 O.S.Supp.1999 § 17-105(8)(c).

The language of Option 3 is that the “designation of a beneficiary ... cannot be changed”, but this language must be read to allow a change in beneficiary when this or other statutes relating to these retirement options authorize such a change. For example, § 17-105(8)(c) allows a change, and § 17-109 allows district court adjudication of all retirement benefits, including those possessed by virtue of survivorship status. We thus view the prohibition upon changing the beneficiary as a limitation upon the power of the retiree to change his or her designated beneficiary, and not a limitation upon a district court’s power when adjudicating the property rights of the parties before it. A district court must determine the marital component of the retirement benefit and divide it between the parties. Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, 931.

¶ 16 The Teachers’ Retirement System makes an appeal to its status as an administrative agency interpreting state statute. The record does not reflect any evidence of longstanding agency policy that § 17-109 limits a district court’s authority to award the monthly deduction for a survivor’s benefit to the member paying the deduction. Thus, as we said in Globe Life and Acc. Ins. Co. v. Oklahoma Tax Commission, 1996 OK 39, 913 P.2d 1322: “The doctrine of Oral Roberts University v. Oklahoma Tax Commission, OH., 714 P.2d 1013, 1015 (1985), is sans record support for its application to this case.” Globe Life, at n. 29, 913 P.2d at 1328. We also note that an administrative agency’s statutory interpretation must be reasonable, and the agency cannot extend its power beyond that granted by statute. Henderson v. Maley, 1991 OK 8, n. 7, 806 P.2d 626, 633.

¶ 17 A district court possesses the power to adjudicate all of the property rights held by the spouses in the retirement benefit, whether those benefits are currently paid to the member or to the spouse at some future date. 70 O.S.Supp.1999 § 17-109. Both types of interests are valued by the Teachers’ Retirement System when a member retires, and may be awarded by a court to the member or spouse owning such interests at the time of the post-retirement divorce.

¶ 18 An administrative order is subject to reversal if an appealing party’s substantial rights are prejudiced because the agency’s decision is entered in excess of statutory authority or jurisdiction, or if an order is entered based on an error of law, or if the agency’s findings are clearly erroneous in view of the reliable, material, probative and substantial competent evidence in the record. City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶¶ 12-13, 967 P.2d 1214, 1219. This Court may direct a district court to enter judgment when nothing is left to be adjudicated upon remand. Sandejur v. Vanderslice, 1944 OK 129, 151 P.2d 430. The Board of Trustees of the Teachers’ Retirement System of Oklahoma made an error of law when deciding Tubbs’ protest. Nothing remains to be adjudicated in the District Court of Oklahoma County upon remand.

¶ 19 That part of the judgment of the District Court of Oklahoma County affirming the final Order of the Board of Trustees of the Oklahoma Teachers’ Retirement System is reversed, and the matter is remanded to that court with directions to enter judgment for the Plaintiff Tubbs, and directing the Board to enter an Order consistent with the provisions of the Decree of Divorce previously entered by the District Court of Comanche County.

¶ 20 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU and WINCHESTER, JJ.— concur.

¶ 21 OPALA, J. — concurs in part, dissents in part.

      . Original Record on appeal (O.R.), at 131-135, Journal Entry of Judgment and Decree of Divorce, No. FD-98-1081, District Court of Comanche County, (March 3, 2000).

      . O.R. at 136-139, Qualified Domestic Order For Purposes Of Dividing Oklahoma Teachers' Retirement System Benefits, No. FD-98-1081, District Court of Comanche County, (April 18, 2000).

      .O.R. at 70-74, Proposed- Findings of Fact and Conclusion of Law, No. OTRS-00-006-BEN, Board of Trustees of the Teachers’ Retirement System of Oklahoma, (July 18, 2000).

      . 15 O.S.1991 § 178 Contracts designating former spouse as beneficiary or providing death benefits — Effect of divorce or annulment
      A. If, after entering into a written contract in which a beneficiary is designated or provision is made for the payment of any death benefit (including life insurance contract, annuities, retirement arrangements, compensation agreements, depository agreements, security registrations, and other contracts designating a beneficiary of any right, property, or money in the form of a death benefit), the party to the contract with the power to designate the beneficiary or to make provision for payment of any death benefit dies after being divorced from the person designated as the beneficiary or named to receive such death benefit, all provisions in the contract in favor of the decedent's former spouse are thereby revoked. Annulment of the marriage shall have the same effect as a divorce. In the event of either divorce or annulment, the decedent's former spouse shall be treated for all purposes under the contract as having predeceased the decedent. (Emphasis added)

      . The five plans (or options) are set forth in both statute and rules of the Teachers’ Retirement System. The cited rules are based upon the statutory retirement plans codified at 70 O.S. § 17-105. In May of 1996 when Tubbs retired the 1995 version of § 17-105 was in effect. See the historical annotation of amendments to the statute at 70 O.S.Supp.1995 § 17-105 and 70 O.S.Supp.1997 § 17-105. The five plans are:
      1. The "Maximum Retirement Plan” which "is the monthly entitlement calculated using the standard retirement formula set by statutes.” O.A.C. 715:10-15-10(1) (1996).
      2. "Retirement Option 1” which provides a slightly reduced lifetime benefit and calculated as "the difference between the annuity portion of the maximum retirement plan and the annuity portion of an Option 1 retirement plan subtracted from the Maximum retirement plan.” O.A.C. 715:10-15-10(2) (1996).
      3. "Retirement Option 2” which provides a reduced monthly benefit payable to the member for life. "At the death of the retired member, the same monthly benefit payable to the member, shall continue to the spouse of the member, if living.” "This option is known as a ‘100% joint survivor annuity.'” O.A.C. 715:10-15-10(3) (1996).
      4. "Retirement Option 3” which provides a reduced monthly benefit payable to the member for life. "At the death of the retired member, one-half (or 50%) of the monthly benefit payable to the member, shall continue to the spouse of the member, if living.” "This option is known as a ‘50% joint survivor annuity.’ " O.A.C. 715:10— 15-10(4) (1996).
      5. "Retirement Option 4" which provides a reduced monthly benefit payable to the member for life. "In the event the retired member dies within one hundred twenty (120) continuous months from the date of retirement, the balance of the payments are continued to the designated beneficiary until a total of one hundred twenty (120) months have been completed.” O.A.C. 715:10-15-10(5) (1996).
      The 1996 edition of the Oklahoma Administrative Code states that it is “Comprising All Permanent and Preemptive Rules Filed With The Secretary of State Through December 31, 1996." (Emphasis added). The 1996 edition states that O.A.C. 715:10-15-10 was previously amended effective 10-14-94 through 7-14-95, and subsequently amended effective July 27, 1995, and thus the version of the rules reported in the 1996 edition was in effect in May of 1996 when Tubbs retired.

      . O.A.C. 715:10-15-12 (1996), “Spousal consent," states in part that:
      "If the member is married at the time of retirement, tire retiring member’s spouse must complete Part A, acknowledging that the retirement options available to the member have been explained to the spouse and the spouse concurs with the retirement option selected by the retiring member.”

      . Ozment was released for publication by the Court of Civil Appeals. Such opinions have persuasive effect, but are not precedential. 12 O.S. 2001 Ch. 15, App., Okla.Sup.Ct.R. 1.200(c)(2). See also Sommer v. Sommer, 1997 OK 123, ¶ 26, 947 P.2d 512, 519; Manley v. Brown, 1999 OK 79, n. 9, 989 P.2d 448, 452.

      .The version of § 17-109 effective upon Tubbs' retirement, 70 O.S.Supp.1995 § 17-109, was amended twice thereafter prior to the divorce decree, once in 1998 and again in 1999. All three versions recognize a district court’s authority in creating alternate payees on the basis of adjudicating marital property interests. The 1999 version states:
      § 17-109. Exemption from legal process
      A. Except as otherwise provided by this section, the right of a person to an annuity or a retirement allowance, to the return of contributions, annuity, or retirement allowance itself, any optional benefit, or any other right accrued or accruing to any person under the provisions of this act, and the monies in the various funds created by this act, are hereby exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as in this act specifically provided. Notwithstanding the foregoing, the Board of Trustees may approve any offset of a member's benefit to pay a judgment or settlement against a member for a crime involving the System, for a breach of the member's fiduciary duty to the System, or for funds or monies incorrectly paid to a member or a beneficiary by mistake, provided such offset is in accordance with the requirements of Section 401(a)(13) of the Internal Revenue Code of 1986.
      B. 1. The provisions of subsection A of this section shall not apply to a qualified domestic order as provided pursuant to this subsection.
      2. The term "qualified domestic order” means an order issued by a district court of this state pursuant to tire domestic relation laws of the State of Oklahoma which relates to the provision of marital property rights to a spouse or former spouse of a member or provision of support for a minor child or children and which creates or recognizes the existence of the right of an alternate payee, or assigns to an alternate payee the right, to receive a portion of the benefits payable with respect to a member of the Retirement System.
      3. For purposes of the payment of marital property, to qualify as an alternate payee, a spouse or former spouse must have been married to the related member for a period of not less than thirty (30) continuous months immediately preceding the commencement of the proceedings from which the qualified domestic order issues.
      4. A qualified domestic order is valid and binding on the Board of Trustees and the related member only if it meets the requirements of this subsection.
      5. A qualified domestic order shall clearly specify:
      a. the name and last-known mailing address (if any) of the member and the name and mailing address of the alternate payee covered by the order,
      b. the amount or percentage of the member's benefits to be paid by the Retirement System to the alternate payee,
      c. the number of payments or period to which such order applies,
      d. the characterization of the benefit as to marital property rights or child support, and
      e. each plan to which such order applies.
      6. A qualified domestic order meets the requirements of this subsection only if such order:
      a. does not require the Retirement System to provide any type or form of benefit, or any option not otherwise provided under state law as relates to the Retirement System,
      b. does not require the Retirement System to provide increased benefits, and
      c. does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee pursuant to another order previously determined to be a qualified domestic order or an order recognized by the Retirement System as a valid order prior to the effective date of this act.
      7. A qualified domestic order shall not require payment of benefits to an alternate payee prior to the actual retirement date or withdrawal of the related member.
      8. The obligation of the Retirement System to pay an alternate payee pursuant to a qualified domestic order shall cease upon the death of the related member.
      9. This subsection shall not be subject to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. Section 1001, et seq., as amended from time to time, or rules and regulations promulgated thereunder, and court cases interpreting said act.
      10. The Board of Trustees of the Teachers’ Retirement System' of Oklahoma shall promulgate such rules as are necessary to implement the provisions of this subsection.
      11. An alternate payee who has acquired beneficiary rights pursuant to a valid qualified domestic order must fully comply with all provisions of the rules promulgated by the Board of Trustees pursuant to this subsection in order to continue receiving his or her benefit.

      . See the discussions of when public pension benefits vest in Woods v. City of Lawton, 1992 OK 167, 845 P.2d 880, 882; Snider v. Board of Trustees for Oklahoma Police Pension and Retirement Bd., 1989 OK 136, 782 P.2d 911, 914-915; Baker v. Oklahoma Firefighters Pension and Retirement System, 1986 OK 8, 718 P.2d 348, 353.

      . In 1998 the language describing Option 3 was amended twice. See 1998 Okla.Sess.Laws Ch. 360 § 1, at p. 1536, (approved June 8, 1998, and eff. July 1, 1998), and 1998 Okla.Sess.Laws Ch. 419 § 9, at p. 220 (approved June 11, 1998, and eff. July 1, 1998). The first version, approved June 8, stated that the designation of a beneficiary could not be changed. However, the second version approved on June 11, 1998 omitted this language. The 1999 version of the statute incorporated changes made by both of the 1998 amendments. See 1999 Okla.Sess.Laws, Ch. 1, § 26 at p. 58, eff. Feb. 24, 1999.
      Generally, the latest enactment in point of time will ordinarily prevail, but in construing statutes passed at the same session of the Legislature, and at nearly the same time, there is a strong presumption against implied repeals. In re Adoption of Lewis, 1963 OK 24, 380 P.2d 697, 700. Because we assume that the 1999 version of § 17-105 in effect at the time of the divorce decree applies to Tubbs, we need not address whether the language omitted by the second 1998 version was in effect prior to the 1999 amendment.

      . When Tubbs retired the retirement system provided, and still provides, a procedure for changing, after retirement of the retiree, an Option 2 or Option 3 retiree to the Maximum plan retiree if the retiree's spouse dies. O.A.C. 715:10-15-10.1 (1996).

      . The designation of beneficiary of Teachers' Retirement System benefits is contractual. Pepper v. Peacher, 1987 OK 71, 742 P.2d 21, 25.


author: DAVIS, Judge.

text:
    2002 UTApp 306
    Kathryn COLLARD, Trustee of the LeRoy Collard Trust, Plaintiff and Appellee, v. NAGLE CONSTRUCTION, INC., a Utah corporation; Gary M. Nagle, an individual; and Marilyn F. Nagle, an individual, Defendants and Appellants. Gary M. Nagle, Counterclaim Plaintiff, v. Kathryn Collard, Trustee of the LeRoy Collard Trust, Counterclaim Defendant.
    No. 20000976-CA.
    Court of Appeals of Utah.
    Sept. 26, 2002.
    Rehearing Denied Nov. 5, 2002.

      Ralph J. Marsh, Backman, Clark & Marsh, Salt Lake City, for Appellants.
    Kathryn Collard, Salt Lake City, Appellee Pro Se.
    Before JACKSON, P.J., DAVIS, and ORME, JJ.
   OPINION

DAVIS, Judge.

¶ 1 Defendants Nagle Construction, Inc., Gary M. Nagle, and Marilyn F. Nagle appeal from the trial court’s decision to grant summary judgment for Plaintiff Kathryn Collard, trustee of the LeRoy Collard Trust.

The trial court denied Seller’s motion for summary judgment and granted Buyer’s motion for summary judgment, ruling Buyer was entitled to title in certain real property. Buyer cross-appeals the trial court’s decision to deny Buyer attorney fees pursuant to the parties’ Uniform Real Estate Contract.

BACKGROUND

¶ 2 On March 30, 1978, Buyer purchased a condominium unit from Seller. Using a Uniform Real Estate Contract, Buyer agreed to pay $100,500.00 for the condominium by (1) making a down payment of $10,000.00; (2) assuming a mortgage loan owed by Seller to First Security Bank in the amount of $59,958.75; and (3) tendering 55,000 shares of stock of the Utah Coal and Chemical Company for the balance of the purchase price of $30,541.26. In return, Seller agreed to convey title to the condominium when Seller verified that the value of the stock was sufficient to cover the unpaid balance of the purchase price.

¶ 3 Buyer and Seller also addressed attorney fees in the contract:

The Buyer and Seller each agree that should they default in any of the covenants or agreements contained herein, that the defaulting party shall pay all costs and expenses, including a reasonable attorney’s fee, which may arise or accrue from enforcing this agreement, or in obtaining possession of the premises covered hereby, or in pursuing any remedy provided hereunder or by the statutes of the State of Utah whether such remedy is pursued by filing a suit or otherwise.

¶ 4 Buyer paid the $10,000.00 down payment and began making payments on the mortgage. She also took possession of the condominium, began paying property taxes, and began making improvements to the property. In May 1979, Buyer recorded notice of the contract and tendered the required 55,000 shares of stock to Seller. However, Buyer never assumed the mortgage.

¶ 5 Seller informed Buyer that he considered Buyer’s failure to assume the mortgage a breach of contract and advised Buyer that default and foreclosure proceedings could be instituted. In lieu of foreclosure proceedings, Buyer and Seller added a second addendum to the contract on September 18, 1979. In Addendum 2, Buyer agreed to pay approximately $50,000.00 more for the condominium in exchange for Seller’s forbearance. Addendum 2 reads:

Title of premises being sold under the contract referred to above will be transferred when [Seller] sells sufficient of the shares of Utah Coal and Chemical Corp. transferred under [the contract] to realize $85,000 cash. Seller hereby agrees to sell shares sufficient to realize $85,000 within 1 year of receipt thereof providing the market value of said shares will cause a realization of $85,000.
Should the value of the 55,000 shares conveyed not equal $85,000 within 1 year buyer agrees to convey additional shares of Utah Coal and Chemical Corp. stock or cash sufficient to bring the total value conveyed to seller to $85,000 before seller conveys title to premises sold to buyer.

¶ 6 On January 13, 1981, Seller, through his attorney, sent Buyer a letter informing Buyer that the stocks did not reach the contracted value of $85,000.00 within one year and that Buyer had not yet paid the difference. Accordingly, Seller informed Buyer that he would consider Buyer in default if Buyer did not pay the amount still owed on the contract by January 25, 1981.

¶ 7 Buyer responded to the letter on January 25,1981, by asserting that she was not in default and by enclosing information that allegedly demonstrated the stocks could have been sold for $85,000.00 during the one-year period referred to in Addendum 2. After Buyer’s response, no further action concerning the contract was taken by either party until 1999. During this time, Buyer continued to inhabit the condominium and make mortgage, tax, and improvement payments. In 1986, Buyer sought to refinance the mortgage on the condominium, and received a response letter informing her that title to the condominium was in Seller’s name. Later, in 1989, Buyer wrote a letter specifically requesting that Seller’s name be replaced with Buyer’s name on the title.

¶ 8 On July 28, 1999, Buyer brought suit, seeking a declaratory judgment to quiet title based on breach of contract and adverse possession. Seller answered and counterclaimed for remedies under the contract, including forfeiture and foreclosure. Seller also sought a declaratory judgment quieting title in him. Both parties filed motions for summary judgment. After a July 17, 2000 hearing, the trial court ruled that the statute of limitations barred both parties’ claims, and ordered a hearing to determine whether the court had equitable powers to resolve the dispute.

¶ 9 During that hearing, on August 30, 2000, the trial court ruled that only Seller was barred by the statute of limitations. The trial court determined that the statute of limitations ran against Seller when he failed to bring suit against Buyer within six years after Buyer allegedly failed to pay the $85,000.00 required by Addendum 2. However, the statute of limitations had not run against Buyer because her continuous mortgage payments had kept and would continue to keep the remainder of the contract alive. Accordingly, the trial court ruled that Buyer’s legal right to title would accrue when she finished paying the mortgage.

¶ 10 In its December 4, 2000 written order, the trial court listed the undisputed facts of the case. Among these facts, the trial court specifically stated: “The court makes no finding regarding the value of the 55,000 shares of Stock received by [Seller] at any point in time”; “[N]o additional agreements or changes to the contract were entered into between [Seller and Buyer] after January 25, 1981”; and Seller “retained the 55,000 shares of Stock and the $10,000.00 down payment made by [Buyer].”

¶ 11 Based on the undisputed facts, the trial court concluded that the contract was governed by the six-year statute of limitations as set forth in Utah Code Ann. § 78-12-23 (1996); that Seller’s cause of action for breach of contract based on Buyer’s failure to assume the mortgage arose no later than January 25, 1981; that Seller’s counterclaim based on Addendum 2 and the value of the 55,000 shares of stock was barred no later than January 25, 1987; and that Seller’s continued acquiescence in Buyer’s payments on the mortgage balance operated as a waiver of the assumption requirement. The court also concluded that “[e]ach and every cause of action set forth in [Seller’s] Answer and Counterclaim was and is barred by the six year Statute of Limitations set forth in [section] 78-12-23.”

¶ 12 The court went on to find that: “Except for the terms or requirements of the contract, the enforcement of which is now barred by the statute of limitations ... the Contract remains a valid and binding agreement between the parties”; “The [Buyer’s] right to demand delivery of fee title pursuant to the Contract has not arisen and will not arise or accrue until payment of the remaining balance owing on the [mortgage]”; and finally, “Pursuant to the terms of the Contract, [Buyer] is entitled to immediate delivery of fee title subject to and conditioned upon payment of the remaining balance owed on the [mortgage].”

¶ 13 The court then fashioned an order that denied Seller’s motion for summary judgment, denied Buyer’s cross-motion for summary judgment on her breach of contract and adverse possession claims, awarded summary judgment for Buyer on Seller’s counterclaims, and granted Buyer’s cross-motion for summary judgment for “Declaratory Relief Quiet Title.” The court ordered delivery of the deed to an escrow agent of Buyer’s choosing, ordered Buyer to pay off the mortgage, and ordered the deed released to Buyer once the mortgage was paid. On November 6, 2000, the Court rejected Buyer’s request for attorney fees and costs.

¶ 14 On December 4, 2000, the trial court entered an order staying judgment on appeal conditioned upon Seller’s posting bond. Seller failed to post bond, and the Court vacated the ordered stay. Title to the condominium passed to Buyer when she finished making the mortgage payments. Thereafter, the condominium was sold to a third party.

ISSUES AND STANDARDS OF REVIEW

¶ 15 The first issue on appeal is whether the trial court correctly granted Buyer’s motion for summary judgment, ruling that Buyer was entitled to title of the property. “Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Jones v. ERA Brokers Consol., 2000 UT 61,¶ 8, 6 P.3d 1129; see also Utah R. Civ. P. 56(c). “Because entitlement to summary judgment is a question of law, we accord no deference to the trial court’s resolution of the legal issues presented.” K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994). “We determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.” Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (citations and quotations omitted).

¶ 16 The second issue on appeal is whether the trial court erred in denying Buyer attorney fees. “Whether a party may recover attorney fees in an action is a question of law that we review for correctness.” Ault v. Holden, 2002 UT 33,¶ 46,44 P.3d 781.

ANALYSIS

I. Summary Judgment and Specific Performance

¶ 17 Seller argues that the trial court erred in granting Buyer’s motion for summary judgment because Buyer was not enti-tied to receive title to the condominium without first paying the full purchase price.

¶ 18 Although the trial court characterized its decision as an order to quiet title, the trial court’s decision is actually a decree for specific performance. A quiet title action is a “proceeding to establish a plaintiffs title to land.” Black’s Law Dictionary 30 (7th ed.1999); see also Utah Code Ann. § 78-40-1 (1996). “To succeed in an action to quiet title to real estate, a plaintiff must prevail on the strength of his own claim to title and not on the weakness of a defendant’s title or even its total lack of title.” Church v. Meadow Springs Ranch Corp., 659 P.2d 1045, 1048-49 (Utah 1983). Conversely, an action for specific performance is an action seeking “precise fulfillment of a legal or contractual obligation.” Black’s Law Dictionary 1407 (7th ed.1999); see also Kelley v. Leucadia Fin. Corp., 846 P.2d 1238, 1243 (Utah 1992). In this case, Seller) not Buyer, held title to the condominium and the trial court determined that Buyer was not in adverse possession. Consequently, Buyer’s only claim to title of the condominium was through specific performance of the contract. Unless the trial court ordered Seller to perform, Buyer had no claim to legal title of the condominium. See Olwell v. Clark, 658 P.2d 585, 586-87 (Utah 1982) (recognizing that under the adverse possession statute “possession of real property is presumed to be in the legal title holder and that occupancy by any other is deemed subordinate to that title” (emphasis in original)). Therefore, the trial court’s order in Buyer’s favor is an order granting specific performance.

¶ 19 Specific performance is an equitable remedy. See Fischer v. Johnson, 525 P.2d 45, 46 (Utah 1974). “To obtain a decree for specific performance against a defaulting party, the aggrieved party must make an unconditional tender of the performance required by the agreement.” Kelley, 846 P.2d at 1243 (emphasis added). “Neither party to an agreement ‘can be said to be in default (and thus susceptible to a judgment for damages or a decree for specific performance) until the other party has tendered his own performance.’ ” Id. (quoting Century 21 All W. Real Estate & Inv., Inc. v. Webb, 645 P.2d 52, 56 (Utah 1982)). Thus, to be entitled to the equitable remedy of specific performance on the contract, Buyer must have fully tendered, or stood ready to fully tender, her own performance under the contract.

¶ 20 Under the terms of the contract, Buyer was required to perform the requirements outlined in the contract before receiving title to the condominium. Buyer made the $10,000.00 down payment in 1978 and tendered the 55,000 shares of stock in 1979. However, Buyer failed to assume the mortgage. In response to Buyer’s breach, Seller and Buyer added Addendum 2 to the contract. Under Addendum 2, Buyer was obligated to pay an additional $50,000.00, bringing the total to $85,000.00. This $85,000.00 was to be realized from the 55,000 shares of stock she had already tendered to Seller. In Addendum 2, Seller agreed to sell the stock within one year if it reached a value of at least $85,000.00 within that year. Otherwise, Buyer was obligated to “convey additional shares of Utah Coal and Chemical Corp. stock or cash sufficient to bring the total value conveyed to seller to $85,000 before seller conveys title to premises sold to buyer.”

¶21 Summary judgment is inappropriate because whether Buyer ever performed the requirements of Addendum 2 is a disputed issue of fact. Although Buyer conveyed the 55,000 shares of stock, there is evidence in the record presented by Seller to show that the shares never reached a value of at least $85,000.00. In contrast, Buyer submitted evidence that the shares did obtain a value of at least $85,000.00 within the one-year period specified in Addendum 2. The trial court seemed to recognize this conflict, but expressly noted that it made no finding as to the value of the 55,000 shares of stock at any time. If the stock did reach a value of at least $85,000.00 within one year and Buyer assumed the mortgage, then Buyer fully performed and is entitled to specific performance. However, if the stock did not reach a value of $85,000.00 within one year and Buyer never tendered stock or cash sufficient to bring the total value conveyed to $85,000.00, then Buyer never fully performed and is not entitled to specific performance.

¶ 22 Buyer argues that the statute of limitations prevents Seller from asserting Buyer’s failure to assume the mortgage and failure to pay the amount due under Addendum 2 as counterclaims. In this case, the trial court held Seller’s claims for breach of contract accrued no later than January 25, 1981. Nevertheless, even if Seller’s counterclaims are barred by the statute of limitations, Seller is permitted to use these counterclaims as an offset or recoupment against Buyer’s claims. *

¶ 23 Offset is permitted when “cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up.” Utah R. Civ. P. 13(i). When offset is utilized, “the two demands shall be deemed compensated so far as they equal each other: this doctrine, a defendant may even “utilize a counterclaim, normally barred by the statute of limitations, to offset a plaintiffs claim.” Coulon v. Coulon, 915 P.2d 1069, 1072 (Utah Ct.App.1996). Recoupment is. similar to offset and is utilized where parties’ claims arise from the same transaction. See Mark VII Fin. Consultants Corp. v. Smedley, 792 P.2d 130, 132-33 (Utah Ct.App.1990) (holding that although offset “refers to an unrelated transaction” and recoupment refers to “the same transaction,” “the distinctions between re-coupment, [offset], and counterclaim have ... been dissolved in Utah”). Id. Under

¶ 24 In this case, either offset or recoupment is permitted. First, offset is permitted because Buyer’s and Seller’s causes of action coexisted. “An action may be brought by any person against another who claims an estate or interest in real property or an interest or claim to personal property adverse to him, for the purpose of determining such adverse claim.” Utah Code Ann. § 78-40-1. Buyer brought her action against Seller in 1999. Buyer argues that she had to wait to bring suit until after she paid the remaining amount owed on the mortgage. However, this contention is contradicted by Buyer’s own course of conduct. This action was brought before Buyer finished paying the balance of the mortgage. Thus, because Seller’s and Buyer’s claims coexisted, Seller is entitled to use his counterclaims to offset Buyer’s claims. Second, recoupment is permitted because Seller’s and Buyer’s claims arose from the same contract.

¶ 25 Buyer argues that offset is not available to Seller because Seller did not plead offset as an affirmative defense as required by rule 12(h) of the Utah Rules of Civil Procedure. However, neither offset nor recoupment are affirmative defenses that must be pleaded or waived. Instead, offset and recoupment are merely mechanisms that may be used to ensure substantial justice if a party asserts a counterclaim that is barred by the statute of limitations. See, e.g., Jacobsen v. Bunker, 699 P.2d 1208, 1210 (Utah 1985) (holding that where a defendant has “a counterclaim that otherwise would have been barred by a statute of limitations, the counterclaim could be [offset] against the plaintiffs claim”).

¶26 Allowing an offset or recoupment in circumstances where a defendant’s affirmative claims are barred by the statute of limitations is based on a sound policy of preventing a plaintiff from waiting to assert a claim until after a defendant’s counterclaim is barred. See Coulon, 915 P.2d at 1072. Allowing an offset in this case is appropriate even though Buyer essentially seeks specific performance rather than money damages because equity requires it. To the extent that Seller sat on his rights and delayed asserting those rights, Buyer did the same. Moreover, although Seller may have ultimately waived his claim, it is Buyer who initially breached the parties’ original contract by never assuming the mortgage. To allow Buyer to breach one of her obligations under the contract, then, years later—after never having brought suit to have title conveyed—to obtain title without having to perform her other obligations under the same contract, is not equitable. Because Buyer has already sold the property at issue, all that remains for a remedy for Seller is a monetary award. Thus, the concept of offset is easily applied to the facts of this case, and the trial court can fashion a remedy after any factual issues are resolved.

¶ 27 If, on remand, the fact finder determines that the 55,000 shares were worth at least $85,000.00 at some point in time between September 18, 1979 and September 18,1980, and that Seller was obligated to sell the shares at that time, then Buyer has performed her obligations and Seller is not entitled to further relief. However, if the fact finder determines that the shares did not reach a value of $85,000.00 within the appointed period, then Seller is entitled to offset the amount of the shortfall Buyer was obligated to pay in cash or additional shares against the value of the property.

¶28 We reject Buyer’s other arguments for affirming the trial court’s order. First, Buyer argues the trial court’s decision granting specific performance was correct because Seller waived his right to sue for breach of contract. Regardless of any implied waiver by Seller as to Buyer’s duty to assume the mortgage, the above analysis, based on equity and the propriety of an offset for Seller, controls. Second, Buyer argues that the trial court’s decision was appropriate because the doctrine - of laches prevents Seller from asserting his rights under the contract. Laches bars a recovery when there has been a delay by one party causing a disadvantage to the other party. See Papanikolas Bros. Enters, v. Sugarhouse Shopping Ctr. Assocs., 535 P.2d 1256,' 1260 (Utah 1975). Whether laches bars recovery in this case turns on disputed issues of fact, making it inappropriate for summary judgment.

II. Attorney Fees

¶ 29 The language of the contract respecting attorney fees is unambiguous. The parties intended that the defaulting party should be responsible for costs and attorney fees. Accordingly, on remand the trial court should determine and award costs and attorney fees as may now be appropriate.

CONCLUSION

¶ 30 We conclude that the trial court erred in granting summary judgment for Buyer and ordering title be conveyed to Buyer upon payment of the mortgage. We also conclude that the only basis for awarding attorney fees is the contract, and leave to the trial court on remand to determine whether and to whom attorney fees and costs should be awarded.

¶ 31 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and GREGORY K. ORME, Judge.

      . Nagle Construction, Inc. was the original seller in this case. It conveyed its interest in the property at issue to Gary M. Nagle on April 12, 1978. We refer to Nagle Construction, Inc., Gary M. Nagle, and Marilyn F. Nagle collectively as Seller. We use the third person pronoun "he” when referring to Seller.

      . LeRoy Collard, Kathryn Collard's father, was the original buyer in this case. However, LeRoy Collard conveyed his interest in the property to Kathryn Collard on January 3, 1997, and died on February 8, 1997. Thus, we refer to Kathryn Collard and LeRoy Collard collectively as Buyer. We use the third person pronoun "she” when referring to Buyer.

      . It is well established that "in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We recite the facts of this case accordingly.

      . The parties drafted Addendum 1 as part of the original contract. Therefore, we make no separate reference to Addendum 1.

      . Seller also argues that Buyer did not meet the requirements of rule 9(h) of the Utah Rules of Civil Procedure when she pleaded the affirmative defense of statute of limitations because she did not "refer[ ] to or describ[e] such statute specifically and definitely by section number.” We decline to reach this argument as it is raised for the first time on appeal. See, e.g., Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (holding " 'issues not raised at trial cannot be argued for the first time on appeal’ ... unless the petitioner demonstrates that 'plain error' occurred or 'exceptional circumstances' exist”) (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)).

      . We note that the trial court incorrectly interpreted the language of Addendum 2. " 'In interpreting a contract, the intentions of the parties are controlling.' " Spears v. Warr, 2002 UT 24,¶ 39, 44 P.3d 742 (quoting Central Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3,¶ 12, 40 P.3d 599). "When presented with a written instrument, we look first to the four corners of the agreement to determine the parties’ intentions. If the language within the four corners is unambiguous, the parties' intentions are determined from the plain meaning of the contractual language.” Id. (internal citation omitted). The language of Addendum 2 is unambiguous. Buyer was obligated to transfer $85,000.00 in value before Seller conveyed title. However, the parties and the trial court misinterpreted the language of Addendum 2 to mean Buyer was required to pay the total $85,000.00 within one year. The one-year time limitation to which the trial court refers relates .not to Buyer’s obligation to pay, but to Seller’s obligation to sell the stock if the stock reached a value of at least $85,000.00 within one year.

      . Since findings in a summary judgment context are inappropriate anyway, the court presumably determined it was unnecessary to reach this issue given its conclusion that Seller’s claims were barred by the statute of limitations.

      . The date of execution of Addendum 2.