source: Caselaw Access Project

author: SUMMERS, J.

license: Public Domain

text:
    2003 OK 84
    John Jerod WATFORD, Plaintiff/Appellant, v. Roger WEST and David West, Defendants/Appellees, and Paul Tinkham and Barbara Tinkham, Individually, and as Parents and Next Friends of Aaron Tinkham, a minor, Defendants.
    No. 99,126.
    Supreme Court of Oklahoma.
    Oct. 14, 2003.
    Lynn B. Mares, Brent L. Neighbors, Abel, Musser, Sokolosky, Mares & Kouri, Oklahoma City, OK, for Appellant.
    Diane M. Black, Loyal J. Roach, Steven V. Buckman, Buckman & Roach, Tulsa, OK, for Appellees.
   SUMMERS, J.

T1 The issue is whether a petition in the District Court may be amended to show the changed status of a plaintiff who was a minor when the suit was begun, but who became of age during its pendency, where the plaintiffs and their attorneys did not correct their petition to show the change until after the statute of limitations had expired. We conclude that under the cireumstances here such an amendment should have been allowed, and the case should not have been dismissed.

2 The parents of John Jerod Watford, a minor child, alleged that he was negligently injured. They filed an action in the District Court styled "John Watford and Jackie Wat-ford Individually and as Parents and Next Friends of John Jerod Watford, a Minor". On December 15, 2000, while the action was pending, the child attained the age of eighteen years. No filing was made in the District Court to inform the District Court of the child's age or to modify the style of the action.

1 3 Plaintiffs dismissed their action without prejudice in June 2001, and then filed it again in June 2002 within the one year allowed by 12 0.8. § 100. When the action: was filed the second time the style of the petition was the same as before. Then on August 2 and 12, 2002 Plaintiffs' attorneys, apparently having realized that John Jerod was now a legal adult, filed amended Petitions naming as plaintiffs "John Jerod Wat-ford, John Watford, and Jackie Watford."

4 Summons issued and defendant, Roger West, was served with a copy of the Second Amended Petition filed August 12th. West then filed a motion to dismiss, and argued that John Jerod Watford's action was untimely-that it had to have been filed by December 15, 2001 to satisfy the applicable statute of limitations. West argued that December 15, 2001 was the date John Jerod turned nineteen years of age, and that 12 ©.8.2001 § 96 barred the action as re-filed in June 2002. The District Court granted the motion to dismiss.

15 Summons issued and a copy of the Second Amended Petition was also served on the defendant, David West. He filed a similar motion to dismiss, and it too was granted by the District Court. John Jerod Watford filed in the District Court a dismissal of his claim against the Tinkham defendants, but appealed the dismissal of his claim against the Wests.

T6 The trial court dismissed the parents' claims, and that dismissal is not challenged in this proceeding. No claim remains pending in the District Court. This Court retained John Jerod Watford's appeal and ordered the parties to file supplemental briefs.

17 John Jerod was under the age of eighteen years when the alleged injury occurred. By statute, a minor, unless otherwise statutorily specified, is a person under the age of eighteen years. 15 0.98.2001 § 18. Generally, a person under legal disability at the time an action accrues may bring an action within one year after the disability is removed. 12 0.9.2001 § 96. The parties do not dispute the applicability of this statute. They agree that John Jerod was under the age of eighteen years when the action accrued. They differ as to the legal effect of the petition and amended petitions filed in June and August of 2002.

4 8 Every action shall be prosecuted in the name of the real party in interest. 12 0.8. 2001 § 2017. No party disputes that John Jerod was a party to the first action.

T9 In Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731, (approved for publication by order of the Supreme Court), a parent filed an action on behalf of the estate of her deceased daughter. However, another of her daughters was appointed special administratrix of that estate. The defendants made their defense based upon there being an improper party plaintiff, failure to state a claim upon which relief may be granted, and a statute of limitations. The trial court denied the plaintiff's motion to substitute the special administratrix as the plaintiff and gave the defendants summary judgment. Id. 895 P.2d at 782.

[ 10 In reversing the trial court's decision on substitution of the plaintiff the appellate court then explained that substitution of parties had been liberally recognized in Oklahoma.

Substitution of plaintiffs has been liberally granted in Oklahoma where mistake or inadvertent error has caused the improper party to file an action. Saint Paul Fire and Marine Insurance Co. v. Spann, 355 P.2d 567 (Okla.1960). In Saint Paul Fire, the court explained that " 'courts should be inclined to disregard subtleties and answer technical objections to the sufficiency of a pleading in an honest effort to determine the real issues on their merits, and to try and do substantial justice to the litigants before them.' " Id. at 570 (quoting Mostenbocker v. Shawnee Gas & Elec. Co., 49 Okla. 804, 152 P. 82, 85 (1915)). Furthermore, " 'where there is no change in the cause of action and the party substituted bears some relation of interest to the original party and to the action, the substitution may be allowed, as where the substitution is of one having the legal right to sue instead of one improperly named as plaintiff? " Id. at 571 (quoting Dierks v. Waish, 196 Okla. 872, 165 P.2d 354 (1946)).

Weeks v. Cessna Aircraft Co., 895 P.2d at 733.

The court then explained the application of 12 0.8. § 2017:

Oklahoma's interpretation of section 2017 is fully consistent with the construction commonly placed on Federal Rule of Civil Procedure 17, from which section 2017 derives. The advisory committee notes to the 1966 amendment to Rule 17 describe the rationale for permitting liberal substitution of the plaintiff for the real party in interest in actions brought under the Federal Rules.
The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. (Emphasis added).
FR.C.P. 17, Advisory Committee Notes, 1966 Amendment. The committee notes stress that the provision "is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made." Id. The committee explains that "the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover." Id. Where the defendant's interests are protected, substitution should be allowed.

Weeks, 895 P.2d at 783

111 As stated in Weeks, the Oklahoma Legislature used Federal Rule 17 when creating 12 O.S8. § 2017. The Committee Comment to § 2017 notes that "Subsection A of Section 2017 is identical to Federal Rule of Civil Procedure 17(a) except that the reference to actions brought in the name of the United States in the third sentence of Federal Rule 17(a) is deleted as unnecessary." 12 O.S.A. § 2017 (West 1993). Due to the identical nature of Rule 17(a) and § 2017(a) a federal court construction of that Rule prior to its Oklahoma adoption is informative for our analysis here:

The purpose of (Rule 17(a)) is to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. Thus its main thrust is to allow a correction in parties after the statute of limitations has run, despite the valid objection that the original action was not brought by the real party in interest.
8A Moore's Federal Practice P, 17.15-1, at 17-182 (2d ed.1979) (footnotes omitted). See also Audio-Visual Mkt. Corp. v. Omni Corp., 545 F.2d 715, 719 (10th Cir.1976); Unilever (Raw Materials) Ltd. v. M/T Stolt Boel, 77 F.R.D. 384, 389 (S.D.N.Y. 1977); American Dredging Co. v. Federal Ins. Co., 309 F.Supp. 425, 429 (S.D.N.Y. 1970) Advisory Committee Notes on the 1966 Amendments, 39 F.R.D. 69, 84-85 (1966). The defendants would not be prejudiced in their defense of this action by changing the named plaintiff. They knew the persons and the issues involved before the statute of limitations ram. See Metropolitan Paving Co. v. International Union of Operating Eng'rs, 489 F.2d 300, 306 (10th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 68, 80 L.Ed.2d 58 (1971). Moreover, the failure to use Dominga's name in the first place is an understandable and excusable mistake. See Crowder v. Gordons Transps., Inc., 387 F.2d 413, 418-19 (8th Cir.1967). Cf. Hobbs v. Police Jury, 49 F.R.D. 176, 180 (W.D.La.1970).

Garcia v. Hall, 624 F.2d 150, n. 3, 151 (10th Cir.1980), (emphasis added).

The Tenth Circuit is not alone in explaining that Rule 17 allows substitution of a party although a statute of limitations has run. A well known authority states as follows:

The final sentence in Rule 17(a) is designed to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party in whose name the action should be brought. Thus, a correction in parties is permitted even ofter the statute of limitations governing the action has run. This provision reflects the general policy of the draftsmen of the federal rules that the choice of a party at the pleading stage ought not have to be made at the risk of a final dismissal of the action should it later appear that there had been an error. In this respect the rule is consistent with the liberal relation back provision in Rule 15(c). Indeed, Rule 15(c) has been used in conjunction with Rule 17(a) to enable an amendment substituting the real party in interest to relate back to the time the original action was filed. The same result could have been reached solely on the basis of the last sentence in Rule 17(a).

6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 1555. pp. 412-414, (2d ed.1990), (notes omitted).

In 1978 a Tennessee court reviewed the federal rule and its application by federal courts:

With respect to the substitution of a plaintiff ofter the statute of limitations had rum, the Court said:
"But it has come to be the settled law that where, either by mistake of law or fact, a suit is brought in the name of a wrong party, the real party in interest, entitled to sue upon the cause of action declared on, may be substituted as plaintiff ...; but the substitution of the name of the proper plaintiff has relation to the commencement of the suit, and the same legal effect as if the suit had been originally commenced in the name of the proper plaintiff" 102 F.Supp. at 212.

Chapman v. King, 572 S.W.2d 925, 928 (Tenn.1978), quoting, Wallis v. United States, 102 F.Supp. 211, 212 (E.D.N.C.1951), {emphasis added).

There is simply no doubt that Rule 17(a), and thus our § 2017(a), may apply when adding a plaintiff after a statute of limitations has run.

112 The inquiry does not end with the literal language of Rule 17. Although Rule 17(a) speaks in broad language, courts have observed that the rule was drafted with some exceptions in mind:

The Advisory Committee Notes to the Federal rules, with respect to Rule 17(a), are in pertinent part, as follows:
"The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice.
"This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed. ..."
Although the rule is to be applied liberally, abuses will not be permitted.
"However, the rule should be applied only to cases in which substitution of the real party in interest is necessary to avoid injustice. Moreover, the provision is not intended to authorize suits in the name of fictitious parties in the hope that at a later time the attorney filing the action may discover the real parties to the action."

Chapman v. King, 572 S.W.2d 925, 929, quoting, Wright and Miller, Federal Practice and Procedure, at § 1555, emphasis added.

Consistent with this language in Chapman, several courts have used the Advisory Committee's note to Rule 17(a) and said that the Rule "is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made." Wieburg v. GTE Southwest Inc., 272 F.3d 302, 308 (5th Cir.2001). See also, U.S. for Use and Benefit of Wulff v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir. 1989); Fujimoto v. Au, 95 Hawai'i 116, 19 P.3d 699, 725. The Wieburg court explained:

In accordance with the Advisory Committee's note, most courts have interpreted the last sentence of Rule 17(a) as being applicable only when the plaintiff brought the action in her own name as the result of an understandable mistake, because the determination of the correct party to bring the action is difficult. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.1997) (district court retains discretion to dismiss action where there was no reasonable basis for naming incorrect party); Feist, 100 F.Supp.2d at 276 ("Rule 17(a) should not be applied blindly to permit substitution of the real party in interest in every case. In order to substitute the trustee as the real party in interest, Plaintiff must first establish that when he brought this action in his own name, he did so as the result of an honest and understandable mistake."); Lans v. Gateway 2000, Inc., 84 F.Supp.2d 112, 120 (D.D.C.1999) ("it is appropriate to liberally grant leave to substitute a real party in interest when there has been an honest mistake in choosing the nominal plaintiff, meaning that determination of the proper party was somehow difficult at the time of the filing of the suit, or that the mistake is otherwise understandable."), aff'd, 252 F.3d 1320 (Fed.Cir.2001); South African Marine Corp. v. United States, 640 F.Supp. 247, 254-55 (Ct. Int'l Trade 1986) (Rule 17(a) "should be used to prevent forfeiture and injustice where the determination as to who may sue is difficult").

Wieburg v. GTE Southwest Inc., 272 F.3d at 808.

13 Honest mistakes often involve the legal status of the plaintiff. For example, in Lavean v. Cowels, 885 F.Supp. 875 (W.D.Mich.1998), an action was brought by the daughter of the deceased, but the nature of the proceeding required the personal representative of the estate as the plaintiff, and the daughter did not possess this status at the time of trial. The court cited the U.S. Supreme Court's opinion in Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed.2d 1319 (1953), where that Court held that an "action commenced by administrator whose appointment was void could be amended, even after statute of limitations had run, to allege effective appointment," and explained that the daughter's subsequent appointment as personal representative would relate back to the filing of her complaint. Id. 835 F.Supp. at 388. This language is consistent with Weeks v. Cessna Aircraft Co., supra, where the court explained that the trial court erroneously denied plaintiffs motion to substitute the special administratix as the plaintiff.

114 John Jerod argues that his amended petitions were filed before the defendants were served with process, and that such is allowed by 12 0.8.2001 § 2015(a) He further argues that the cause of action alleged against the defendants in the first action is repeated in the second action, and in the amended petitions filed in the second action. In this regard John Jerod also relies upon 2015(C), and urges that the amended petitions relate back to the original petition in the second action. Defendants in response argue that the causes of action are not identical, because an action filed by parents on behalf of a minor child is not identical to an action filed when that child attains his or her majority. We disagree. This is at most a distinction without a difference. Their focus is on how John Jerod was named as a party, and not upon the occurrence alleged as a basis for his claim.

115 The defendants argue for dismissal based upon the statute of limitations, and that argument is based upon assertions that John Jerod was not a party to the petition filed in June 2002, because the style of the case named him as a minor. We conclude that in the first petition of the refiled action the act of naming John Jerod in the same capacity as in the recently dismissed suit was an understandable mistake, and subject to being corrected pursuant to 12 0.8.2001 § 2017(a). We conclude that the District Court erroneously granted the motions to dismiss. We reverse that judgment, and remand the cause for further proceedings consistent with this opinion.

T 16 ALL JUSTICES CONCUR.

      . See, eg., 15 0.$.2001 § 13:
      § 13. Minors defined-Computing period of minority
      Minors, except as otherwise provided by law, are persons under eighteen (18) years of age.
      The period thus specified must be calculated from the first minute of the day on which a person is born to the same minute of the corresponding day completing the period of minority.

      . 12 0.$.2001 § 96:
      § 96. Persons under disability in actions other than to recover realty-Exceptions-Personal injury to minor arising from medical malpractice If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one (1) year after such disability shall be removed, except that, after the effective date of this section, an action for personal injury to a minor under the age of twelve (12) arising from medical malpractice must be brought by the minor's parent or guardian within seven (7) years of infliction of the injury, provided a minor twelve (12) years of age and older must bring such action within one (1) year after attaining majority, but in no event less than two (2) years from the date of infliction of the injury, and an action for personal injury arising from medical malpractice to a person adjudged incompetent must be brought by the incompetent person's guardian within seven (7) years of infliction of the injury, provided an incompetent who has been adjudged competent must bring such action within one (1) year after the adjudication of such competency, but in no event less than two (2) years from the date of infliction of the injury.

      . 12 0.$.2001 § 2017(A) states as follows:
      A. REAL PARTY IN INTEREST. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, join-der, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

      . We have noted that "Where the text of the Federal Rules has been adopted in the Oklahoma Pleading Code, the construction placed on it by federal and state courts should be presumed to have been adopted as well." Young v. Macy, 2001 OK 4, n. 8, 21 P.3d 44, 47.

      . 12 0.8.2001 § 2015(A) states in part: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty (20) days after it is served. Amendments to add omitted counterclaims or to add or drop parties may be made as a matter of course within the time specified above."

      . 12 O0.9$.2001 § 2015(C)(2) states that an amendment of a pleading relates back to the date of the original pleading when "The claim or defense asserted in the emended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading...."


author: WINCHESTER, J.

text:
    2003 OK 87
    STATE of Oklahoma, DEPARTMENT OF HUMAN SERVICES, ex rel. Patricia Ann OVERSTREET, Appellant, v. Quinton Harold OVERSTREET, Appellee.
    No. 97,179.
    Supreme Court of Oklahoma.
    Oct. 14, 2003.

      See also 78 P.3d 956.
    John O. Walton, Assistant District Attorney, Ardmore, OK, for appellant.
    Wallace Coppedge, Little, Little, Little, Windel, Coppedge, Oliver, & Gallagher, Tish-omingo, OK, for appellee.
   WINCHESTER, J.

T1 The issue before us is one of first impression, that is, whether the termination of parental rights also terminates the duty to support. The legal issue and facts of this appeal are similar to those before us in Lindsay v. McCabe, 2003 OK 86, 78 P.3d 956, also decided today. The current law on this issue, found in 10 0.8.2001, $ 7006-1.3(B)(1), and enacted in 1994, provides that termination of parental rights shall not terminate the duty to support the minor child until a decree of adoption has been entered. We hold that before the amendment of § 7006-1.3 in 1994, termination of parental rights terminated the duty to support that parent's minor children.

FACTS

T2 The appellee, Quinton Harold Over-street, Father, and Patricia Ann Overstreet, Mother, were divorced in 1987. The decree of divorcee granted Mother custody of the parties' two children, and ordered Father to pay $400.00 per month in child support. In 1989, Mother sought termination of Father's parental rights for failure to pay child support. After a hearing, the trial court found Father in contempt for failure to pay child support, granted Mother a judgment for the arrearage, and terminated Father's parental rights.

T3 In 2001, Mother applied for and received public assistance for the care of one of the parties' children. The Department of Human Services, (DHS), the appellant, consequently sought and obtained an order to withhold income for child support against Father to recoup funds expended or to be expended on the child's behalf, and served the order on Father's employer.

T4 Father filed a motion to terminate the order, pursuant to 48 0.8.2001, $ 117(A)(1), asserting that the 1989 order which terminated his parental rights also terminated his child support obligation. The trial court agreed and granted Father an injunction restraining further wage assignments for support obligations. DHS appealed and the Court of Civil Appeals affirmed the order of the trial court. We have previously granted certiorari to consider this issue of first impression.

EFFECT OF TERMINATION OF PARENTAL RIGHTS ON CHILD SUPPORT

115 Before 1994, and at the time Father's parental rights were terminated, the statute now codified as 10 00.98.2001, § 7006-1.3 was 10 0.8.1981, § 1182, and provided:

"The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and his right to visit the child, his right to control the child's training and education, the necessity for the parent to consent to the adoption of the child and the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent."

1968 Okla.Sess.Laws, ch. 282, § 182.

T6 DHS asserts that the law before 1994 was identical to that codified in 10 0.8.2001, § 7006-1.3(B)(1). The cases and statutes cited by DHS fail to explain the determinative phrase of the 1968 version of the statute that "termination of parental rights terminates the parent-child relationship." The construetion of the phrase resolves the issue.

T7 DHS argues that a parent may not, by his own misconduct, unilaterally terminate his legal and moral obligation to support his minor children and cites West v. West, 1926 OK 204, 246 P. 599, for support. West held that a divorce decree which is silent concerning the support of a minor child does not discharge the parent's obligation to support the child. West v. West, 1926 OK 204, 128, 246 P. 599, 602. The case does not discuss termination of parental rights, nor does it construe the statute at issue in this case. DHS also cites Bingham v. Bingham, 1981 OK CIV APP 26, 629 P.2d 1297, to support its position that a parent cannot by his own unilateral conduct, terminate a child's right to parental support. The divorce decree in that case approved a provision that excused an adoptive father from payment of child support and additionally provided that he was without visitation rights. The Court of Appeals held that a decree, which by agreement of the parties, deprives a parent of parental rights and duties without a finding concerning best interests of the child is voidable and subject to attack. Bingham, 1981 OK CIV APP 26, ¶¶ 13, 16, 629 P.2d at 1300.

18 We agree that parents cannot be allowed to agree to termination of the parent-child relationship without a hearing and consideration of the best interests of a child. This Court has refused to recognize a release agreement between a mother and father that releases all claims to a child in exchange for a release from prosecuting a paternity action. State Dept. of Human Services ex rel. K.A.G. v. T.D.G., 1998 OK 126, ¶7, 861 P.2d 990, 992-993. The Court observed that courts in other jurisdictions which had addressed the issue were uniform in holding that an illegitimate child's right to support cannot be contracted away by its mother. One of the reasons to support this holding was that the agreement had not been approved by a tribunal, K.A.G., 1998 OK 126, ¶¶7, 8, 861 P.2d at 998. In contrast, Father's parental rights were terminated by a court for failure to support. That ruling terminated the parent-child relationship.

T9 While courts in other jurisdictions agree that the type of contract found in KAG. is invalid, the great majority of jurisdictions also agree that judicial termination of parental rights severs the parent-child relationship to the extent that the parent no longer owes a duty to support the child. The case of State of Nevada v. Vine, 99 Nev. 278, 662 P.2d 295, cert. den., 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983), has many facts in common with the case before this Court. In Vine, the parents of a minor child were granted a divorce. The mother was awarded custody, and the father was ordered to pay child support. Almost one year later, the court terminated all parental rights of the father. Over five years later, the State of Nevada filed an action against the father seeking reimbursement for past welfare assistance payments and future support for the minor child.

¶10 The Nevada Supreme Court held that an order terminating parental rights completely severed the parent-child relationship, terminating all rights and obligations of both parent and child. Vine, 99 Nev. at 288, 662 P.2d at 297-298. The Nevada court quoted, with approval, Anguis v. Superior Court, 6 Ariz. App. 68, 71, 429 P.2d 702, 705 (Ariz.App. 1967), which held:

"[Wle construe the term 'parental rights' in the broader term as the sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents. In other words, we construe parental rights to include both parental rights and parental obligations."

That sentence is quoted with approval by County of Ventura v. Gonzales, 88 Cal. App.4th 1120, 1123, 106 Cal.Rptr.2d 461, 464, and Roelfs v. Wallingford, 207 Kan. 804, 811, 486 P.2d 1371, 1376 (1971).

T 11 In State of Konsas ex rel. Secretary of Social and Rehabilitation Services v. Clear, 248 Kan. 109, 115, 804 P.2d 961, 965-966 (1991), the Supreme Court of Kansas noted that during the termination of parental rights the focus is "a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of the natural parent by another guardian or adoptive parent." Quoting Roelfs, 207 Kan. at 811, 486 P.2d 1871.

4 12 We conclude that the majority view of our sister states holding termination of parental rights also terminates parental duties is consistent with the wording of the applicable statute, 10 0.8.1981, § 1132, which in its present form still includes the phrase "termination of parental rights terminates the parent-child relationship." We hold that the termination of Father's parental rights terminated his duty to pay child support; and we affirm the decision of the trial court, which issued an injunction restraining further wage assignments for support obligations.

ATTACK ON UNDERLYING JUDGMENT

113 DHS expresses concerns for the due process and equal protection rights of the minor children because they were not separately represented by an attorney in the termination of Father's parental rights. DHS presumably presents this argument to support its request that the order of the trial court in the present case be vacated. In reality, DHS is challenging the validity of the termination of Father's parental rights in hopes of reinstating his parental duty of support.

{ 14 The order terminating Father's parental rights was dated April 21, 1989, and filed April 26, 1989. The facial validity of that order is not before this Court.

DEBT CREATED BY 56 0.8.2001, § 238

115 DHS claims that pursuant to 56 0.8. 2001, § 238, even if Father had no legal obligation to pay child support, he would still owe a debt to the State of Oklahoma as the 'natural parent'. The statute essentially provides that money paid by DHS for the benefit of a child creates under the cireumstances described, a debt to the State of Oklahoma by the "natural or adoptive parent or parents who are responsible for support of such child in an amount equal to the amount of public assistance money so paid." DHS suggests that this statute should be construed to mean that "if there is no parent responsible for the support of the child, then the debt falls on the child's natural parent." We do not agree.

T16 The statute creates the debt against the party "responsible for support of such child." The phrase "who are responsible for support of such child or children" modifies "the natural or adoptive parent or parents." If a natural parent or parents are responsible for support, then the public assistance paid on behalf of their child becomes their debt. If an adoptive parent or parents are responsible for support, the debt applies to them. The construction DHS attempts to give this statute is not supported by the language.

T17 We have held that when Father's parental rights were terminated, his parental duties were also terminated. Accordingly, he is not a "parent ... responsible for support of such child."

€ 18 This issue was addressed by the Court of Appeals of Georgia in Department of Human Resources v. Ammons, 206 Ga.App. 805, 426 S.E.2d 901 (1992), cert. den., 263 Ga. 382, 436 316 (1993). The father's parental rights had been terminated and the Department of Human Resources had provided public assistance benefits to the child. The Department brought an action to recover the amount of the benefits. Georgia's statute, as quoted in the case, provided: " "The payment of public assistance to or on behalf of a child creates a debt due and owing the state by the parent ... responsible for the support of the child." OCGA $ 19-11-5. (Emphasis supplied by Ammons.) The court reasoned that as the result of the termination order, the father was not a parent who is responsible for the support of his child. If the child had no claim for support, neither did DHR on behalf of the child. Ammons, 206 Ga. App. at 806, 426 S8.E.2d at 902.

119 In the case at bar, § 288, the third paragraph provides, "The Department shall be subrogated to the right of said child or children to prosecute or maintain any support action...." Where the child has no right to maintain an action for support, neither does DHS.

CONCLUSION

1 20 We conclude that under the applicable statute, 10 00.98.1981, § 1132, effective at the time the termination order was handed down, the termination of Father's parental rights also terminated his parental duties. Therefore he had no duty to pay further child support after the termination order became effective. Because Father had no duty to pay further child support, there were no rights to assign to DHS, and no debt is created against Father owing to the State of Oklahoma for public assistance funds expended for the support of the minor child.

ALL JUSTICES CONCUR.

      . The applicable portion of the statute, subsection B, was added by 1994 Okla.Sess.Laws, ch. 356, § 10, effective September 1, 1994. The statute, currently codified at 10 0.8.2001, § 7006-1.3 provides:
      "A. The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and the parent's right to visit the child, the parent's right to control the child's training and education, the necessity for the parent to consent to the adoption of the child, the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent.
      "B. 1. Except for adoptions as provided in paragraph 3 of this subsection, termination of parental rights shall not terminate the duty of either parent to support his or her minor child.
      "2. Any actual notice of termination of parental rights and order terminating parental rights shall indicate that the duty of the parent to support his or her minor child will not be terminated except for adoption as provided by paragraph 3 of this subsection.
      "3. Child support orders shall be entered by the court that terminates parental rights and shall remain in effect until the court of termination receives notice from the placing agency that a final decree of adoption has been entered and then issues an order terminating child support and dismissing the case."

      . Title 43 0.$.2001, § 117 provides:
      "A. Except as otherwise provided by subsection B of this section, the person obligated to pay support or the person entitled to the support may petition the district or administrative court to:
      "1. Modify, suspend, or terminate the order for income assignment because of a modification, suspension, or termination of the underlying order for support; or
      "2, Modify the amount of income to be withheld to reflect payment in full of the delinquency by income assignment or otherwise; or
      "3. Suspend the order for income assignment because of inability to deliver income withheld to the person entitled to support payments due to the failure of the person entitled to support to provide a mailing address or other means of delivery.
      "B. If the income assignment has been initiated by the Department of Human Services, the district court shall notify the Department of Human Services prior to the termination, modification, or suspension of the income assignment order."

      . The following jurisdictions hold the majority view: Erwin v. Luna, 443 So.2d 1242, 1244 (Ala. Civ.App.1983); County of Ventura v. Gonzales 88 Cal.App.4th 1120, 106 Cal.Rptr.2d 461, 462 (2001); In re Bruce R., 234 Conn. 194, 662 A.2d 107, 111 (1995); Ponton v. Tabares, 711 So.2d 125, 126 (Fla.Ct.App.1998); Department of Human Res. v. Ammons, 206 Ga.App. 805, 426 S.E.2d 901, 902 (1992), cert. den., 263 Ga. 382, 436 S.E.2d 316 (1993); Kansas ex rel. Sec'y of Soc. & Rehab. Servs. v. Clear, 248 Kan. 109, 804 P.2d 961, 966 (1991); Mauk v. Mauk, 873 SW.2d 213, 216 (Ky.Ct.App.1994); Louisiana v. Smith, 571 So.2d 746, 748 (La.Ct.App.1990); In re Estate of Braa, 452 N.W.2d 686, 688 (Minn.1990); Schleisman v. Schleisman, 989 S.W.2d 664, 671 (Mo.Ct.App.1999); Nevada v. Vine, 99 Nev. 278, 662 P.2d 295, 297-98 (1983); Gabriel v. Gabriel, 519 N.W.2d 293, 295 (N.D.1994); In re Scheehle, 134 Ohio App.3d 167, 730 N.E.2d 472, 475 (1999); Kauffman v. Truett, 771 A.2d 36, 39 (Pa.Super.2001); Coffey v. Vasquez, 290 S.C. 348, 350 $.E.2d 396, 398 (Ct.App.1986); Estes v. Albers, 504 N.W.2d 607, 608 (S.D.1993); Swate v. Swate, 72 S.W.3d 763, 771 (Tex.Ct.App.2002); Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 38 Va.App. 107, 562 S.E.2d 327, 329 (2002); In re Dependency of G.C.B ., 73 Wash.App. 708, 870 P.2d 1037, 1042 n. 6 (1994).
      These jurisdictions conclude that child support obligations continue after parental rights have been terminated: Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328, 331 (1995); Rhode Island v. Fritz, 801 A.2d 679, 685 (R.1.2002), Rebecca Lyan C. v. Michael Joseph B., 213 W.Va. 744, 584 S.E.2d 600 (2003).

      . "Any payment of public assistance money by the Department of Human Services, hereinafter referred to as 'Department,' to or for the benefit of any dependent child or children or a child in the custody of the Department creates a debt due and owing to the State of Oklahoma by the natural or adoptive parent or parents who are responsible for support of such child or children in an amount equal to the amount of public assistance money so paid.
      Provided, that any debt under this section shall not be incurred by nor at any time be collected from a parent or other person who is the recipient of public assistance monies for the benefit of minor dependent children for the period such person or persons are in such status.
      ''Provided further, that where there has been a court order, the debt shall be limited to the amount provided for by said order. The Department shall have the right to petition the appropriate court for modification of a court order on the same grounds as a party to said cause. The Department shall be subrogated to the right of said child or children to prosecute or maintain any support action or execute any administrative remedy existing under the laws of the State of Oklahoma to obtain reimbursement of money thus expended."


text:
    2003 OK 86
    Debra Diane McCABE, now Lindsay, Appellee, v. Keith Michael McCABE, Appellant.
    No. 96,036.
    Supreme Court of Oklahoma.
    Oct. 14, 2003.

      See also 78 P.83d 951.
    Sandee Coogan, Sandee Coogan Law Office, Norman, OK, for appellant.
    Jim Pearson, Jim Pearson, P.C., Oklahoma City, OK, for appellee.
   WINCHESTER, J.

[ 1 The issue before us is whether a trial court may now establish future child support and set an arrearage for retroactively established child support when the parties agreed in a 1990 divorce to termination of any parental rights the husband had to a newborn child, and further agreed that the mother was not entitled to receive any child support on behalf of the newborn. The agreement was approved by a court and was not appealed. We answer that under the statutes applicable when the divorcee was granted, the termination of parental rights to the child also terminated the husband's child support obligations. The legal issue and facts of this appeal are similar to those before us in State ex rel. Overstreet v. Overstreet, 2008 OK 87, 78 P.3d 951, also decided today.

FACTS

' 2 In May 1989, when the appellant, Keith Michael McCabe, married the appellee, Debra Diane McCabe, now Lindsay, she was pregnant. In August 1989, Lindsay sought separate maintenance, and in September 1989, McCabe counter sued for divorcee. A son was born on February 7, 1990. Lindsay subsequently amended her petition and sought divorce. The next month, McCabe moved to compel a blood test for the child since he claimed he was not the child's natural father. The parties reached an agreement where McCabe would give up any parental rights in a termination proceeding. The trial court informed Lindsay that she would not be entitled to any child support since McCabe's parental rights were being terminated. She acknowledged that she understood this. The child's paternal grandparents relinquished their rights. The trial court entered a divorcee decree on May 18, 1990, terminated McCabe's parental rights, and awarded custody to Lindsay. The court did not set child support. Both parties were represented by counsel. Neither party appealed.

13 On December 8, 1997, Lindsay filed a motion seeking child support. Lindsay filed an amended motion on May 11, 1998. After a hearing, the trial court granted Lindsay's motion and ordered McCabe to begin payment of child support of $551.12 per month, beginning October 1, 1998. The court additionally determined that McCabe owed $14,829.12 for past child support, and childcare from October 1, 1998 to November 830, 2000, in the amount of $1,307.25. The judgment included an income assignment, and denied Lindsay's motion for attorney fees. Both parties appealed.

EFFECT OF TERMINATION OF PARENTAL RIGHTS ON CHILD SUPPORT

[ 4 The current law on this issue of whether termination of parental rights terminates the duty to support is found in 10 0.8.2001, § 7006-1.3, and provides that termination of parental rights shall not terminate the duty to support the minor child until a final decree of adoption has been entered. Before 1994, and at the time the parties' divorce decree was entered, the statute, codified at 10 O.S. 1981, § 1182, provided:

"The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and his right to visit the child, his right to control the child's training and education, the necessity for the parent to consent to the adoption of the child and the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent."

1968 Okla.Sess.Laws, ch. 282, § 182.

15 Lindsay argues that a careful reading of this statute shows termination eliminated the parent's benefits of the parent-child relationship, but did not eliminate the child's benefits of that relationship. To support this assertion, Lindsay adds that the only benefit to the child of that relationship, the right to inherit from the parent, was specifically preserved. Lindsay also cites 12 0.8. Supp 1987, § 1277(B), which provided:

"Any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a dependent child is regularly and continuously attending high school, said child shall be entitled to support by the parents through the age of eighteen (18) years."

T 6 Lindsay then cites State Dept. of Human Services ex rel. K.A.G. v. T.D.G., 1998 OK 126, 17, 861 P.2d 990, 992-998, as support for her assertion that parents cannot use the court system to deprive a child of the statutory benefit of child support. She concludes that a child's right to be supported by his father is firmly established in Oklahoma statutory law, and the child's right cannot be terminated by the parent. We disagree with Lindsay's conclusions.

T7 In KAG, the child was born to an unwed mother. She and the putative father executed a release that attempted to settle a paternity dispute between the two. He acknowledged that he was not the father and would release all claims to the child in exchange for a release from the mother agreeing not to prosecute a paternity action, nor to seek child support. Although she didn't seek support from him directly, ten years later she applied for and received Aid to Families with Dependent children. The Department of Human Services commenced an action to determine paternity and establish support obligations. This Court held that a release attempting to deprive permanently a child of support is void as against public policy, and did not prevent the Department of Human Services from bringing a paternity action and establishing support obligations pursuant to statute, 10 0.8.1991, § 89.

T8 The Court observed that courts in other jurisdictions which had addressed the issue were uniform in holding.that an illegitimate child's right to support cannot be contracted away by its mother. Among the reasons for striking the agreement was that the agreement had not been approved by a tribunal. K4.G, 1998 OK 126, 1% 7, 8, 861 P.2d at 998. In contrast, the case now before this Court is distinguishable from K.A.G. because the agreement to terminate the parental rights of McCabe was approved by the court that granted the divorce after a hearing on the issue. The May 18, 1990, Decree of Divorcee, which terminated McCabe's parental rights, was not appealed.

T9 The question before us is not whether a parent has a duty to support a child. The question is: How does termination of parental rights affect the duty to support? The applicable statute is, as stated above, 10 0.8.1981, § 1182. It provides: "The termination of parental rights terminates the parent-child relationship...." It then lists some of the effects of the termination by adding the word "including." The list includes loss of custody, visitation, control of the child's training and education, right to consent to adoption, right to earnings, and right to inherit from the child. Termination of the parent-child relationship suggests severance of the rights of the parent as well as the rights of the child. |

¶10 In considering the term "parental rights" Anguis v. Superior Court, 6 Ariz.App. 68, 71, 429 P.2d 702, 705 (Ariz.App.1967) held: D

"[Wle construe the term 'parental rights' in the broader term as the sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents. In other words, we construe parental rights to include both parental rights and parental obligations."

That sentence is quoted with approval by County of Ventura v. Gonzales, 88 Cal. App.4th 1120, 1123, 106 Cal.Rptr.2d 461, 464, Roelfs v. Wallingford, 207 Kan. 804, 811, 486 P.2d 1371, 1876 (1971), and Department of Human Resources v. Vine, 99 Nev. 278, 283, 662 P.2d 295, 298, (1983), cert. den., 464 U.S. 977, 104 S.Ct. 418, 78 L.Ed.2d 351 (1983).

T 11 In State of Kansas ex rel. Secretary of Social and Rehabilitation Services v. Clear, 248 Kan. 109, 115, 804 P.2d 961, 965-966 (1991), the Supreme Court of Kansas noted that during the termination of parental rights the focus is "a final and permanent settlement of all problems of custody and supervision by a complete and final divestment of all legal rights, privileges, duties, and obligations of the parent and child with respect to each other and by replacement of the natural parent by another guardian or adoptive parent." Quoting Roelfs, 207 Kan. at 811, 486 P.2d 1871.

T 12 Our research reveals a majority of the courts in sister states have held that, absent a statute directing otherwise, an order terminating parental rights severs the parent-child relationship to the degree that the parent no longer owes a duty to support the child. We agree with this view and so hold.

ATTORNEY FEES

113 Lindsay appeals the trial court's order denying her application for attorney fees. In subsequent actions to domestic relations cases, either party may be required to pay the reasonable expenses of the other in the prosecution or defense of the action. 43 0.S.Supp.2003, § 110(BE) ; Merritt v. Merritt, 2003 OK 68, 20, 73 P.3d 878. The action terminating McCabe's parental rights was a part of the divorce and child custody and therefore fits within the subject of § 110, "Orders concerning property, children, support and expenses." The order presently under consideration is a subsequent action within the contemplation of the statute. Attorney fees are granted only to that litigant who qualifies for the benefit through the process of a judicial balancing of the equities after the trial court takes into account what is just and equitable considering the means and property of the respective parties. Unless the trial court abuses its discretion, the court's decision will not be disturbed. Hester v. Hester, 1983 OK 50, 17, 663 P.2d 727, 729. After considering the order of the trial court, and our holding that termination of parental rights also terminates the parental duty of support, we find that the trial court did not abuse its discretion in denying application for attorney fees.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE TRIAL COURT REVERSED.

ALL JUSTICES CONCUR.

      . Title 10 0.$.2001, § 7006-1.3 provides:
      "A. The termination of parental rights terminates the parent-child relationship, including the parent's right to the custody of the child and the parent's right to visit the child, the parent's right to control the child's training and education, the necessity for the parent to consent to the adoption of the child, the parent's right to the earnings of the child, and the parent's right to inherit from or through the child. Provided, that nothing herein shall in any way affect the right of the child to inherit from the parent.
      "B. 1. Except for adoptions as provided in paragraph 3 of this subsection, termination of parental rights shall not terminate the duty of either parent to support his or her minor child.
      "2. Any actual notice of termination of parental rights and order terminating parental rights shall indicate that the duty of the parent to support his or her minor child will not be terminated except for adoption as provided by paragraph 3 of this subsection.
      "3. Child support orders shall be entered by the court that terminates parental rights and shall remain in effect until the court of termination receives notice from the placing agency that a final decree of adoption has been entered and then issues an order terminating child support and dismissing the case."

      . This section was renumbered by 1989 Okla. Sess.Laws, ch. 333, § 1, as 43 O.S. § 112. The renumbering became effective after Lindsay's petition for separate maintenance was filed on August 9, 1989, but before the decree of divorce was filed on May 25, 1990. Subsection B in 12 O0.$.Supp.1987, § 1277 is now subsection E in 43 0.$.Supp.2002, § 112.

      . The following jurisdictions hold the majority view: Erwin v. Luna, 443 So.2d 1242, 1244 (Ala. Civ.App.1983); County of Ventura v. Gonzales 88 Cal.App.4th 1120, 106 Cal.Rptr.2d 461, 462 (2001); In re Bruce R., 234 Conn. 194, 662 A.2d 107, 111 (1995); Ponton v. Tabares, 711 So.2d 125, 126 (Fla.Ct.App.1998); Department of Human Res. v. Ammons, 206 Ga.App. 805, 426 S.E.2d 901, 902 (1992); Kansas ex rel. Sec'y of Soc. & Rehab. Servs. v. Clear, 248 Kan. 109, 804 P.2d 961, 966 (1991); Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky.Ct.App.1994); Louisiana v. Smith, 571 S$o.2d 746, 748 (La.Ct.App.1990); In re Estate of Braa, 452 N.W.2d 686, 688 (Minn.1990); Schleisman v. Schleisman, 989 SW.2d 664, 671 (Mo.Ct.App.1999); Nevada v. Vine, 99 Nev. 278, 662 P.2d 295, 297-98 (1983); Gabriel v. Gabriel, 519 N.W.2d 293, 295 (N.D.1994); In re Scheehle, 134 Ohio App.3d 167, 730 N.E.2d 472, 475 (1999); Kauffman v. Truelt, 771 A.2d 36, 39 (Pa.Super.2001); Coffey v. Vasquez, 290 S.C. 348, 350 S.E.2d 396, 398 (Ct.App.1986); Estes v. Albers, 504 N.W.2d 607, 608 (S.D.1993); Swate v. Swate, 72 S.W.3d 763, 771 (Tex.Ct.App.2002); Virginia ex rel. Spotsylvania County Dep't of Soc. Servs. v. Fletcher, 38 Va.App. 107, 562 S.E.2d 327, 329 (2002); In re Dependency of G.C.B., 73 Wash.App. 708, 870 P.2d 1037, 1042 n. 6 (1994).
      These jurisdictions conclude that child support obligations continue after parental rights have been terminated: Evink v. Evink, 214 Mich.App. 172, 542 N.W.2d 328, 331 (1995); Rhode Island v. Fritz, 801 A.2d 679, 685 (R.I.2002); Rebecca Lynn C. v. Michael Joseph B., 213 W.Va. 744, 584 S.E.2d 600 (2003).

      . Title 43 O.S$.Supp.2003, § 110(E) provides: ''The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys."


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

text:
    2003 OK CIV APP 86
    Keith Gene RYAN, Plaintiff/Appellee, v. Nancy Karen RYAN, now Hinch, Defendant/Appellant.
    No. 97,756.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Sept. 16, 2003.

      R. Wayne Patterson, Tulsa, OK, for Plaintiff/ Appellee.
    Thomas M. Askew, John L. Randolph, Jr., Pray, Walker, Jackman, Williamson & Mar-lar, Tulsa, OK, for Defendant/Appellant.
   Opinion by

KEITH RAPP, Judge:

1 1 The trial court defendant, Nancy Karen Ryan, now Hinch (Hinch), appeals an order overruling her motion for new trial following the trial court's decision in favor of the trial court plaintiff, Keith Gene Ryan (Ryan), to terminate alimony following her remarriage.

BACKGROUND

T2 The parties were divorced in 1996. The decree resulted from a settlement agreement, although a separate agreement is not in the record. The decree provides that Hinch would receive the residence "subject to the mortgage indebtedness thereon." The decree's specific provisions for payment of the parties' debts do not assign responsibility for payment of the mortgage indebtedness. The Decree further provides that Ryan will pay to Hinch a sum equal to the mortgage payment and specified the sum as support alimony. The wording of the Decree is:

THE COURT FURTHER FINDS that Plaintiff shall pay taxable support alimony to Defendant in the total sum of $308,428.00, payable in a monthly amount equal to the current mortgage payment at 9208 South Erie of $929.00 per month. In the event of sale of the house before the mortgage is paid in full, or in the event of the destruction of the house due to casualty, the Plaintiff agrees to make continuing support payments of $929.00 per month up to the amount equal to the current balance on the amortization schedule of the mortgage when the event occurs, as if the sale or destruction had not occurred.... Such payments shall be deemed support alimony and treated as such for income tax purposes by both Plaintiff and Defendant in the year(s) of payment. Support alimony in all cireumstances will cease upon the earlier of repayment of the mortgage or upon the death of the Defendant.

T3 Subsequently, Hinch decided to remarry and did so. Ryan then ceased further payments of the support alimony asserting that her remarriage statutorily terminated the obligation. 48 O0.98.2001, § 134(B). Hinch cited Ryan for contempt and Ryan moved to terminate the obligation.

1 4 Hinch asserted that the parties did not intend to terminate the payments upon remarriage because they desired that their child be able to remain in the residence. Thus, the absence of any specific provision concerning marriage is consistent with that intent. Alternatively, Hinch argued that the Decree is ambiguous because of the absence of the provision and that construing it with the aid of additional evidence establishes her positions.

T5 Ryan argued that the Decree had to specifically exempt remarriage, failing to do so, the statute operated to terminate the obligation. Alternatively, Ryan argued that construction of an ambiguous Decree was limited to a review of the judgment roll and this review did not support Hinch's argument.

T 6 The trial court ruled in favor of Ryan and overruled Hinch's motion for new trial. Hinch appeals.

STANDARD OF REVIEW

T7 As a general rule, a motion for new trial is addressed to the trial court's sound discretion and, absent error as to a pure and unmixed question of law, or arbitrary and capricious action, every presumption should be indulged in favor of the trial court's ruling on appeal. Bennett v. Hall, 1967 OK 122, ¶ 5, 431 P.2d 839, 340-41.

T8 The underlying dispute involved construction of the statute pertaining to termination of support alimony and of the Decree and thus a question of law. Whether there is existence of ambiguity contained in the language of the decree is a decision made by the trial court. See Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, 706 P.2d 523. If the court determines that the language is not ambiguous, the construction of the decree is also a matter of law for the court. See Ferrell Constr. Co., Inc. v. Russell Creek Coal Co., 1982 OK 24, 645 P.2d 1005. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 982 P.2d 1100 n. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

ANALYSIS AND REVIEW

19 The statute makes a divorce-related award of support alimony terminate by force of law on the contingencies of death or remarriage of the party recipient. 43 O.S. 2001, § 184(B); Dickason, 1980 OK 24 at I 1, 607 P.2d at 675-76. Thus, when an unambiguous decree not subject to modification or correction is silent regarding these contingencies, then the occurrence of such contingencies terminates the support alimony award by force of law. Dickason, 1980 OK 24 at ¶¶ 1, 13, 607 P.2d at 675-76, 678.

110 Moreover, parties to a divorce may agree to modify the application of the statute. However, such agreement must be expressly provided in the decree inasmuch as the parties' agreement is both subject to the applicable law and enforceable only when it has received the approval of the court. Dic-kason, 1980 OK 24 at 119-10, 607 P.2d at 677.

111 However, if a decree suffers ambiguity, then the court may construe it but, in doing so, the court is limited to the judgment roll.

Onee a judgment has become final for want of an appeal or in consequence of an appellate court's decision, any controversy over the meaning and effect of that judgment must be resolved by resorting solely to the face of the judgment roll. The meaning of a judgment is to be divined from the terms expressed in its text, which is to be construed with the other parts of the judgment roll. Only if a judgment is ambiguous on the face of the record proper may the court reach it for construction. When called upon to so do, the court stands confined to an inspection of the judgment roll. It cannot extend its inquiry dekors the instruments that comprise the roll.

Stork v. Stork, 1995 OK 61, ¶ 15, 898 P.2d 732, 739.

112 A judgment roll consists solely of the decree and the pleadings, process, reports, verdicts, orders, judgments, and all material acts or proceedings of the trial court. Timmons v. Royal Globe Ins. Co., 1985 OK 76, 17, 713 P.2d 589, 591 n. 5. The court's inquiry into a judgment's meaning cannot extend beyond the judgment roll and proceedings outside the record or not apparent on the face of the record may not be considered. Id. Thus, documents offered below by Hinch, such as letters and affidavits, may not be considered if the decree is subject to construction.

113 The Ryan-Hinch decree is silent regarding the remarriage contingency and its affect on the alimony support obligation. However, examination of the entire decree discloses that the alimony support obligation is tied to the parties' mortgage indebtedness on the residence. The decree makes no provision to assign responsibility, as between the parties, for payment of that debt. The judgment roll does not, upon review, resolve any question regarding the absence of provision for payment of that debt or any question about the silence regarding the remarriage contingency. However, the parties are on notice of the provisions of the statutes.

114 Thus, the decree, in its incorporation of the parties' agreement, suffers from a latent ambiguity concerning responsibility for payment of the mortgage debt but not concerning support alimony which terminates by force of law. A "latent ambiguity" is one not evident from the face of the instrument alone but becomes apparent when applying the instrument to the facts as they exist. In re Estate of Kirk, 127 Idaho 817, 907 P.2d 794, 800 (1995); In re Marriage of Holloway, 299 Mont. 291, 999 P.2d 980, 983 (2000); see In re Estate of Eversole, 1994 OK 114, 885 P.2d 657, 662 n. 20. Black's Law Dictionary defines "latent ambiguity" as a defect which does not appear on the face of language used or an instrument being considered. It arises when language is clear and intelligible and suggests but a single meaning, but some extrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings. A patent ambiguity is one that clearly appears on the face of the document. Black's Law Dictionary, p. 80 (West Group Tth ed.1999). "Where a writing contains a reference to an object or thing, such as a pump, and it is shown by extrinsic evidence that there are two or more things or objects, such as pumps, to which it might properly apply, a latent ambiguity arises." Williams v. Idaho Potato Starch Co., 73 Idaho 13, 245 P.2d 1045, 1048-49 (1952).

[ 15 Here, a latent ambiguity arises when the facts at hand create an issue about responsibility for a common obligation, the mortgage debt. On the one hand it would appear that Hinch would be responsible to make the debt payments, with money supplied by Ryan in a form structured as support alimony. However, when the support alimony obligation ceases by force of law, then that extrinsic fact creates a necessity here for an interpretation or a choice between two or more possible meanings as to whether Ryan or Hinch is responsible for the mortgage payments, or some combination of responsibility results.

116 If the parties' relationship were simply contractual, the court could resort to parol evidence to assist in its resolution of the latent ambiguity. Where the meaning of an ambiguous contract is in dispute, evidence of extrinsic facts is admissible and construction of the contract becomes a mixed question of law and fact. Altshuler v. Malloy, 1963 OK 243, 388 P.2d 1.

T17 In other words, the court still construes the contract but now looks to parol evidence to assist it in the determination of what is meant by the contract wording and to ascertain the intent of the parties. Sunray Packing Co. v. Wilson, 1954 OK 90, ¶ 6, 268 P.2d 264, 267. In that event the court may admit for consideration by the trier of fact evidence showing the cireum-stances under which the contract was made in order to ascertain the intention of the parties. Id.

While parol testimony cannot vary, modify or contradict the terms of the instrument, it is admissible to explain the meaning of words when there is a latent ambiguity in the written text of the agreement. Thus the practical construction of an agreement, as evidenced by the acts and conduct of the parties, is available only in the event of an ambiguity.

Mercury Inv. Co., 1985 OK 38 at ¶ 9, 706 P.2d at 529.

%18 The above discussion now identifies the dilemma faced by the trial court which was: A contract having latent ambiguity may be construed using parol and extrinsic evidence, but construction of a judgment is limited to the judgment roll. In the case of a contract to settle domestic issues, such as here, the contract under the teaching of Dickason is merged into the decree and the parties' rights are determined by resort to the decree. Dickason, 1980 OK 24 at ¶ 9, 607 P.2d at 677.

¶19 The solution to the problem follows from a close reading of Dickason. The parties' agreement is merged into the decree "Lo the extent that its terms are embodied therein." Id. Here, the parties agreement, if any, regarding responsibility for payment of the mortgage debt obligation is not embodied in the decree when the source of money for the payment after divorce is, as here, in the form of support alimony.

120 The trial court's first task on remand is to ascertain whether such an agreement was made about mortgage payment responsibility. If an agreement was made, and if the terms thereof were inadvertently omitted from the decree, then the decree may be reformed to accurately reflect that agreement. Dickason, 1980 OK 24 at ¶6, 607 P.2d at 676-77. The trial court is not confined to the judgment roll in this determination to resolve the latent ambiguity.

¶ 21 If the trial court finds that the parties overlooked and thus omitted from their agreement a provision for responsibility for mortgage payments when support alimony ceased, then the trial court shall be governed by Hickman v. Hickman, 1997 OK 49, 937 P.2d 85.

An unambiguous agreement dividing the property between the parties to a divorce cannot be modified without consent of both parties. Stuart v. Stuart, 555 P.2d 611, 615 (Okla.1976). However, when assets acquired during coverture are omitted from the court's decree providing for the division of property, even when the division of the property was reached by agreement of the parties, the property is owned by the party in which title was vested before the divorcee. Chapman v. Chapman, 692 P.2d 1869, 1374 (Okla.1984). We see no reason to treat the debts of the parties any differently than the assets. When a debt is omitted from the divorce decree, then the liability for the debt remains unchanged.

Hickman, 1997 OK. 49 at I 9, 987 P.2d at 87-88.

CONCLUSION

22 In summary, the support alimony terminated by force of law on remarriage. However, the termination results in a latent ambiguity contained in the decree involving a matter not included in the decree. Therefore, the matter is remanded to the trial court to determine whether the parties agreed as to responsibility for payment of the mortgage debt when support alimony ceased and whether such agreement was inadvertently omitted from the decree. If so, the trial court shall correct the decree to accurately reflect the agreement. If the parties made no agreement then the responsibility for the debt remains unchanged from its inception.

123 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GOODMAN, P.J., concurs, and REIF, J., dissents.

REIF, J.,

dissenting,

1 1 I do not find the support alimony provision to suffer from either patent or latent ambiguity, nor is it "silent as to the parties' intent vis-a-vis the law that applies to them [ie., statutory termination of alimony]." Dickason v. Dickason, 1980 OK 24, ¶ 10, 607 P.2d 674, 677 (footnote omitted). The express language of the support alimony provision reflects that the parties considered and addressed in detail the cireumstances under which termination would and would not occur. In specifying the cireumstances for termination and non-termination, the parties reflected a clear intent that support alimony would terminate in those cireumstances alone and no others. Significantly, they affirmatively chose one of the statutory grounds-death. By specifying and limiting the circumstances for termination, I believe the parties expressly exercised their power to modify applicable law by contract, and effectively excluded remarriage as a ground for termination, even though they did not specifically mention remarriage. Id. at ¶ 10, 607 P.2d at 677.

{2 It is well settled that "mere ambiguity will not affect a judgment's validity, unless none of its terms is susceptible to construction which will make it conformable to law." Jackson v. Jackson, 2002 OK 25, ¶ 18, 45 P.3d 418, 428 (citation omitted). "An unclear judgment should be construed so as to carry out its evident purport and intent, rather than defeat it, and a court should consider the situation to which it was applied and the purpose sought to be accomplished." Id.

13 I would reverse the denial of Wife's motion for new trial and remand with directions to enforce the payment of support alimony in accordance with the provisions in the decree.

      . Decree, Record p. 11 at 16-19, ¥ 10, 13-14.

      . Id., Record p. 11 at 17, T 11.

      . Hinch made no effort to claim that some support was still needed and that it would be inequitable to terminate the payments. Also, Hinch has not attempted to assert some basis to set aside or modify or reform the decree to include some provision inadvertently omitted. The former may be time-barred. See Dickason v. Dicka-son, 1980 OK 24, ¶ 6, 607 P.2d 674, 676-77; Key v. Key, 1963 OK 288, 388 P.2d 505 syl. 1.

      . The statute construed in Dickason was then codified in Title 12, but has not changed in pertinent parts under Title 43. The statute, in effect when the divorce was entered in 1996 and now, provides:

        B. The court shall also provide in the divorce decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate. The court shall order the judgment for the payment of support to be terminated, and the lien released upon the presentation of proper proof of death of the recipient unless a proper claim is made for any amount of past-due support payments by an executor, administrator, or heir within ninety (90) days from the date of death of the recipient. Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage.
      43 0.$.2001, § 134(B).

      . It does not appear that the trial court considered such materials in reaching its conclusion that the support alimony obligation terminated.

      . In some jurisdictions parol evidence may not be admitted to determine the parties' intention in cases of patent ambiguity. Most jurisdictions dispense with the distinction and permit parol evidence regardless of whether the ambiguity is of the patent variety or latent variety. Hokama v. Reline Corp., 57 Haw. 470, 559 P.2d 279, 283 (1977); 29A Am.Jur.2d Evidence, § 1135 (1994). Oklahoma courts have followed the majority rule. See Shuler v. Barnes, 1990 OK CIV APP 37, 793 P.2d 301, where the instrument contained patent ambiguities and the Court deemed utilization of parol evidence proper.


author: KENNETH L. BUETTNER, Judge:

text:
    2003 OK CIV APP 88
    PROTEST OF Pamela Tommie HOLTSLANDER to Unclaimed Property of Carl Ray. Pamela Tommie Holtslander, Appellant, v. Office Of State Treasurer, Robert A. Butkin, State Treasurer, Appellee.
    No. 98,189.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 19, 2003.
    Barry K. Roberts, Norman, Oklahoma, for Appellant.
    Janis W. Preslar, Assistant Attorney General, Oklahoma City, OK, for Appellee.
   Opinion by

KENNETH L. BUETTNER, Judge:

11 Pamela Tommie Holtslander was the sole beneficiary and personal representative of her stepfather Carl Benjamin Ray's estate. He died November 22, 1986. On July 21, 2000, the Office of State Treasurer, Unclaimed Property Division, denied Holtslan-der's claim to two cashier's checks, listed owner: Carl Ray, address unknown, because the two checks were issued approximately eight years after the death of her stepfather and because the Bank did not provide sufficient owner information such as last known address and social security number. It noted that "Carl Ray" was a relatively common name. Holtslander appealed administratively, where, after hearing, the denial was sustained by the State Treasurer. She subsequently appealed that decision to the District Court pursuant to the Oklahoma Administrative Procedures Act. The District Court also upheld the denial. We affirm.

12 Holtslander contends that the District Court on review erred by not correcting the administrative decision which, she claims, was not supported by the law or the evidence. Pursuant to the Oklahoma Administrative Procedures Act, the reviewing court must affirm the decision of the agency, "... if it is found to be valid and the proceedings are free from prejudicial error to the appellant." 75 0.8.2001 § 322(3)

13 The Oklahoma Uniform Unclaimed Property Act, 60 0.8.2001 § 651 et seq., is not an escheat law but a custodial taking law. TXO Production Corporation v. Oklahoma Corporation Commission, 1992 OK 39, 829 P.2d 964. The Unclaimed Property Fund holds property in trust for rightful owners. Id. Funds payable on checks or similar instruments for which a bank or financial institution is directly liable, which have been outstanding for more than five years after they were issued or were payable are presumed abandoned, unless the owner has communicated with the holder in writing or indicated an interest evidenced by a memorandum or other record on file, prepared by an employee of the institution. 60 0.8.2002 § 651.2.

{4 Because of the presumption of abandonment, the burden of proof falls on the protestant. OAC 7385:80-13-26.

T5 Holtslander presented evidence that her stepfather banked at the bank in question's predecessor bank. The bank was unable to supply any of the required identifying information except the name, Carl Ray, and the amount of the two checks. The bank statement of abandoned property shows that the date of issuance and of abandonment were the same, and that the bank was unable to provide a copy of the checks. Personnel from the Unclaimed Property Division noted that their investigation showed the checks were lost during the transition between the first and second bank.

16 Because unclaimed property funds are held in trust for the rightful owner, a protestant must show a valid claim of ownership. The Treasurer must reasonably assess whether such a claim has been presented. OAC 785:80-7-2, "Proof of Ownership.

T7 The Treasurer noted that the bank records introduced by Holtslander showed that account balances near the time of her stepfather's death were significantly less than $37,000 and the fact that the cashier's checks were issued more than seven years after the stepfather's death could not be ignored. It was also found to be particularly significant that Holtslander visited each of her stepfather's banks immediately after his death and withdrew all funds on deposit. Holtslander testified that her stepfather was known at the predecessor bank where his brother was an officer. The testimony revealed that the funds collected exceeded $93,000 and that additional accounts were held in joint tenancy between Holtslander and her stepfather. The Treasurer noted that "Carl Ray" was a rather common name. Finally, the Treasurer stated that the Bank's failure to provide the required identifying information did not abrogate her burden of proving ownership. We agree.

T8 Holtslander complains that the rules do not provide definitions of "prima facie case" and "sufficient evidence." We find her citation, Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14, 981 P.2d 301, 306, on point with respect to "prima facie case" and "sufficient evidence."

When reviewing the proof's sufficiency, the question is whether a prima facie case has been presented. A prima facie case is made out by that quantum of proof which, if unexplained or uncontradicted, is sufficient to establish a given fact and to uphold a judgment in favor of the issue which it supports, but which may be refuted by other evidence. The evidence may be direct or it may be such as supports an inference in favor of the fact in question.

T9 Holtslander, to establish a prima facie case, overcoming the presumption of abandonment, was required to submit evidence sufficient to show ownership of the cashier's checks, albeit subject to rebuttal. The documents submitted showed that her stepfather used "Carl B. Ray" or "Carl B. Ray, Jr." It is unavailing to concentrate on the Treasurer's statement that Carl Ray is a relatively common name. Holtslander had the burden of proof. A name is just a starting point. She needed evidence that her stepfather purchased the cashier's checks or more than likely purchased them. Her lack of evidence supports the denial of the claim. We therefore AFFIRM.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . 75 0.$.2001 § 322:
      (1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are:
      (a) in violation of constitutional provisions; or
      (b) in excess of the statutory authority or jurisdiction of the agency; or
      (c) made upon unlawful procedure; or
      (d) affected by other error of law; or
      (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
      (f) arbitrary or capricious; or
      (g) because findings of fact, upon issues essential to the decision were not made although requested.

      . OAC 735:80-13-26. Burden of Proof, In all administrative proceedings, unless otherwise provided by law, the burden of proof shall be upon the protestant to show in what respect the action or proposed action of OST is incorrect. If, upon hearing, the protestant fails to prove a prima facie case, the hearing examiner may recommend that the Treasurer deny the protest solely upon the grounds of failure to prove sufficient facts which would entitle the protestant to the requested relief.

      . OAC 735:80-7-2(b)(12) permits, with respect to cashier's checks claimed by payee or purchaser who submits a superior claim, a requirement of indemnity bond if there is insufficient owner and property information.


author: KENNETH L. BUETTUNER, Judge:

text:
    2003 OK CIV APP 93
    Terry CLEM, as Attorney-in-Fact for Thais Eoff, Plaintiff/Appellant, v. LEEDEY PUBLIC WORKS AUTHORITY, ex rel. The LEEDEY NURSING CENTER, Defendant/Appellee.
    No. 99,092.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Sept. 19, 2003.

      Derek B. Smith, White Law Firm, Oklahoma City, OK, for Plaintiff/ Appellant.
    James K. Secrest, II, Timothy S. Harmon, Brian J. Goree, Secrest, Hill & Butler, Tulsa, OK, for Defendant/Appellee.
   Opinion by

KENNETH L. BUETTUNER, Judge:

T1 Plaintiff/Appellant Terry Clem, as Attorney-in-Fact for Thais Eoff, appeals from an order dismissing her case against Defendant/Appellee Leedey Public Works Authority, ex rel. The Leedey Nursing Center (Lee-dey). Clem filed suit after Leedey denied her claim made pursuant to the Governmental Tort Claims Act (the Act) Leedey sought to have the case dismissed as untimely. The parties disputed the beginning of the running time of the 180 days allowed for filing suit after denial of a claim. Because Clem filed her action beyond the statutory 180 days allowed under the Act, we affirm the dismissal of the action.

T2 The Act provides that the State of Oklahoma and its political subdivisions are immune from liability for torts, except in cases where that immunity is waived to the extent and manner provided in the Act. 51 0.8.2001 § 152.1. In order to invoke the provisions of the Act, an aggrieved person must file a claim with the State or political subdivision within one year of the date the loss occurs. 51 $ 156. A person may not file suit against the State or a political subdivision until the claim has been denied (or deemed denied by the passage of time). 51 0.8.2001 § 157(A). Most pertinent to this case, the Act states: "(nyo action for any cause arising under (the Act) shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section." 51 0.9.2001 § 157(B) (emphasis added).

13 Clem filed her claim against Leedey August 16, 2001. The letter from Leedey denying the claim is dated October 9, 2001. Clem filed her Petition April 9, 2002, in which she charged Leedey with negligence in the care it gave to Clem's aunt, Thais Eoff, while she was a resident at the Leedey Nursing Center. In her Petition, Clem averred that her claim was denied "by way of correspondence dated October 9, 2001."

T4 Leedey filed its Motion to Dismiss October 23, 2002. Leedey argued that dismissal was required because Clem filed her Petition 182 days after the claim was denied and the Petition was therefore untimely under the Act. Leedey asserted that a Petition filed after 180 days from the denial of the claim must be dismissed for failure to state a claim on which relief may be granted, citing Lasiter v. City of Moore, 1990 OK CIV APP 76, 802 P.2d 1292, cert. denied.

1 5 Clem filed her Response and Objection to Defendant's Motion to Dismiss November 7, 2002. Clem argued that she did not receive notice of the denial of her claim until October 11, 2001 and that she filed her Petition 180 days from that date. Clem argued that her Petition was therefore timely under the Act. To her Response, Clem attached a copy of the certified mail envelope, in which the denial was mailed to counsel for Clem, which includes the language "Ist Notice 10-11," purportedly showing that it was received October 11, 2001. Clem also attached a calendar which shows October 12, 2001 as day 1 and counts up to April 9, 2002 as day 180.

T6 Following a hearing held January 8, 2003, the trial court issued its order granting Leedey's Motion to Dismiss March 10, 2008. On appeal, Clem argues that because Leedey attached evidentiary materials to its Motion to Dismiss, the trial court's order should be treated as one granting summary judgment. Clem argues summary judgment was improper because of the factual dispute over the start of the 180 days for filing suit. However, Clem asserts that the parties do not dispute that her claim was denied October 9, 2001, but she received the letter informing her of the denial October 11, 2001, or that her suit was filed April 9, 2002. The dispute is one of law: whether the 180 days begins on the date the claim is denied or the date the denial notice is received by the claimant.

T7 As stated above, the Act clearly states that an action against the State or a political subdivision must be brought within 180 days after the claim is denied. 51 0.8.2001 § 157(B). The Oklahoma Supreme Court has expressly stated "(the 180 day limitation period for bringing suit begins to run from the date of the claim denial." Vaughan v. City of Broken Arrow, 1999 OK 47, 981 P.2d 316, 319 (not addressing the issue presented here). Nothing in the language of the Act provides for 180 days from the date the denial is received. Indeed, the Act provides that the State or a political subdivision must give notice to the claimant of the denial or approval of the claim within 5 days of such decision. 51 0.98.2001 § 157(A). That subsection provides that the State or political subdivision must approve or deny a claim within 90 days, and that if no decision is made within that time, the claim is deemed denied. The 5 day notice provision in that subsection specifically states:

If the state or a political subdivision approves or denies the claim in ninety (90) days or less, the state or political subdivision shall give notice within five (5) days of such action to the claimant at the address listed in the claim. If the state or political subdivision fails to give the notice required by this subsection, the period for commencement of an action in subsection B of this section shall not begin until the expiration of the ninety-day period for approval.

51 0.8.2001 § 157(A). This language requires the State or political subdivision to give notice of the denial of a claim within 5 days of the denial, or be subject to the 90 day deemed denied period before the 180 day limitations period for filing an action begins. The Act does not state that a claimant has 180 days from the time she receives the notice, but rather gives claimants 180 days from the date of denial (or 180 days from the 90th day after the claim was filed, if no notice of denial was given). Because the Act clearly provides for a time for giving notice, but equally clearly provides that an action must be filed within 180 days of the date of denial, it is unreasonable to conclude that the 180 day period runs from the date notice is received. For example, if the State denied a claim on the 90th day after the claim was filed, it would be inconsistent to hold that if the State gave no notice of the denial then the 180 days would run from the 90th day, but also to hold that if the State did give notice of the denial on the 95th day (as allowed by the Act) then the claimant would have 180 days from the date the notice is received, ie. 185 days from the deemed denied date. This is particularly evident under the example because it would be unreasonable for a claimant who did not receive any notice of the denial to have a shorter limitations period than a claimant who was timely informed the claim had been denied and therefore received express notice of the commencement of the 180 day limitations period.

T8 In Carswell v. Oklahoma State University, 1999 OK 102, 995 P.2d 1118, the 90 day period for denying or approving the claim expired October 8, 1997. The claimant received a letter from the political subdivision dated November 21, 1997 which stated that the claim was denied "as of the date of this letter." Id. at 1120. The claimant filed suit within 180 days of the date of the letter (not the date of receipt) and the political subdivision sought to dismiss the case because the suit was filed more than 180 days from the 90th day, on which date the political subdivision argued the claim was deemed denied, triggering the 180 day limitation period. Id. The Oklahoma Supreme Court held that by affirmatively stating the denial date as later than the 90 day period, the political subdivision effectively extended the time for approval or denial of the claim, and held that the plaintiff's suit was timely. Id. at 1121. The court explained that by stating a date certain for denial in its letter to the claimant, the political subdivision had lulled the claimant into a false sense of security that she would have 180 days from the date of denial, while the political subdivision then sought to dismiss the action based on the 90 day deemed denied rule. Id. at 1128. Most relevant to the instant case, however, is that there was no issue of when the mailed notice was received by the claimant. The claimant and the court operated under the correct view that the key date for triggering the 180 day limitations period is the date of denial.

T9 In Carswell, the court contrasted the holding in Trent v. Bd. of County Com'rs of Johnston County, 1988 OK 15, 755 P.2d 615. In Trent, the claimant was not given notice of the denial of the claim until three weeks after the 90 day period expired. Id. at 617. The claimant filed his suit within six months of the date he received notice. Id. At the time of the claim and filing of suit in Trent, the Act expressly provided that a cause of action could be brought "within six (6) months after notification of denial of the claim by the clerk of the political subdivision." 51 0.S8.1981 § 156(C). Even with that language in the Act, the court held that the parties were imputed with knowledge that the 180 day limitations period in § 157 began on the 90th day after the claim was filed, when the claim was deemed denied. Id. at 618. The court held that regardless of the notice date, the six month limitations period was triggered on the deemed denied date. Id. The court in Carswell distinguished the two cases based on the fact that in Trent the late notice simply stated the claim was denied, while in Carswell, the late notice stated the claim was denied on a particular date after the 90 days expired. 995 P.2d at 1121. These cases establish that the date of denial, not the date of notice, is the trigger for the running of the 180 day limitations period.

€10 The language quoted from the 1981 version of the statute, providing that the limitations period began on the date of notice of denial, was removed from the Act in 1984. The Act now provides that a cause of action must be brought within 180 days of the date of denial, and requires the state to give notice of the denial within 5 days or else be subject to suit for 180 days from the 90 day deemed denied date. The plain language of the Act is that the 180 day period runs from the date of denial-either from the date of an affirmative denial, or from the date of the deemed denial. Receipt of notice is not a relevant date under the Act.

T11 Clem relies on Cortright v. City of Oklahoma City, 1997 OK 158, 951 P.2d 93, for the holding that summary judgment is improper where the parties dispute the beginning date of the 180 day limitations period under the Act. The facts of Cortright are distinguishable from those in the instant case and, as a result, the bare statement of the holding is inapplicable in this case. In Cort-right, the loss occurred April 22, 1995. The claimant filed her claim September 18, 1995. The city acknowledged receiving her claim and advised her that the claim would be deemed denied if it was not approved within 90 days. In November 1995, the city asked for property depreciation information which the claimant provided in December 1995. In that response, the claimant expressed her understanding, from dealings with the city attorney, that the claim would not be deemed denied even though the city failed to act on the claim within 90 days. The city attorney informed the claimant in January 1996 that it would recommend that the claim be denied. The city then informed the claimant that her claim would be presented to the city council March 5, 1996. The city council denied the claim March 5, 1996. The claimant filed her action June 27, 1996. The city sought to have it dismissed because it was filed more than 180 days from the December 17, 1995 deemed denied date.

112 The court in Cortright noted that § 157(A) allows for the parties to agree in writing to extend the 90 day period for denial of a claim. The court found that the negotiations between the claimant and the city attorney in Cortright demonstrated a dispute of fact about whether the parties had agreed to extend the claim denial period and also about the date the 180 day period began. Id. at 96-97.

13 In this case, Clem does not assert that the parties agreed to extend the time for beginning the 180 day limitations period. There is no factual dispute that the claim was denied within the 90 day period and Clem received notice of the denial within 5 days. Therefore, under the plain language of the Act, Clem could not bring a cause of action under the Act more than 180 days after the claim was denied October 9, 2001. Clem's action in the district court was untimely filed and dismissal was proper.

AFFIRMED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . 51 0.$.2001 §§ 151 et seq.