Opinion · Supreme Court of Oklahoma

Nantz v. Nantz

Nantz v. Nantz, 749 P.2d 1137 (Okla. 1988)

Type
Opinion
Court
Supreme Court of Oklahoma
Jurisdiction
Oklahoma
Date
1988-02-03
Topic
litigation

ALMA WILSON, Justice: We are called on again to address the subject of support alimony where the alimony recipient is cohabitating with a member of the opposite sex. The issue again addressed is the retroactivity of 12 O.S. 1981, § 1289, and its subsequent amendments. The parties to this appeal were granted a decree of divorce by the District Court of Comanche County on January 10, 1979. It provided, in addition to property division and child support payments, that the appellant pay the appellee support alimony in the amount of $300 per month from December 1, 1978, through June 1,1993. Support alimony was subject to termination by the death or remarriage of the appellee.

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NANTZ v. NANTZ,1988 OK 9
749 P.2d 1137
WILLIAM C. NANTZ, APPELLANT, v. PATRICIA ANN NANTZ, APPELLEE.
No. 62029.
Supreme Court of Oklahoma.
February 2, 1988.
As Corrected February 3, 1988.
Page 1138
Appeal from the District Court of Comanche County; William Roberts, District Judge.

Appellant, William C. Nantz, filed a motion to modify support alimony on the ground that appellee, Patricia Ann Nantz, was cohabiting with a member of the opposite sex, and that the modification was therefore justified under the statutes. The trial court denied the motion.

REVERSED AND REMANDED.
Dan R. Brown, Lawton, for appellant.

John N. Fleur, Nicklas, Saenz Lile, Inc., Lawton, for appellee.
ALMA WILSON, Justice:
[1] We are called on again to address the subject of support alimony where the alimony recipient is cohabitating with a member of the opposite sex. The issue again addressed is the retroactivity of 12 O.S. 1981 § 1289[12-1289], and its subsequent amendments.

[2] The parties to this appeal were granted a decree of divorce by the District Court of Comanche County on January 10, 1979. It provided, in addition to property division and child support payments, that the appellant pay the appellee support alimony in the amount of $300 per month from December 1, 1978, through June 1, 1993. Support alimony was subject to termination by the death or remarriage of the appellee.

[3] On February 15, 1984, the appellant filed a motion to modify the support payments in Comanche County District Court. Appellant's motion was grounded on the allegation that the appellee was cohabiting with a member of the opposite sex and that modification or termination of support was therefore justified under 12 O.S. § 1289[12-1289](D).1Page 1139

[4] Appellant's motion was denied by the district court on March 12, 1984. The trial court ruled that to sustain the motion would give retrospective effect to the statute, which became effective October 1, 1979, over nine months after the divorce had been granted.

[5] Section 1289(D) makes voluntary cohabitation of a former spouse with a member of the opposite sex grounds for the modification or termination of future support payments where the moving party proves a substantial change of circumstances of either party to the divorce relating to need for support or ability to support.2

[6] Whether § 1289(D) should be retrospectively applied was addressed inSmith v. Smith,652 P.2d 297(Okla. 1982). In theSmith,case, the parties were granted a decree of divorce on February 15, 1979. After subsection D became effective, October 1, 1979, Mr. Smith filed a motion to modify his payments of support alimony on the ground that Mrs. Smith was cohabiting with a member of the opposite sex. The opinion held that 12 O.S. 1981 § 1289[12-1289](D) could have prospective application only because there was no language in the statute to indicate that the legislature intended to give retrospective effect to it.

[7] After theSmithcase was published in 1982, the legislature amended § 1289, adding subsection E:
Except as otherwise provided in subsection D of this section, the provisions of any divorce decree pertaining to the payment of support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Only those installments accruing subsequent to the motion for modification may be modified.3


[8] That subsection provides thatanydivorce decree may be modified. The movant need only prove changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable. Proof sufficient for relief under subsection D is similar, requiring "substantial change of circumstances of either party to the divorce relating to need for support or ability to support." In spite of the language that "any" divorce decree may be modified, this Court held inHoldsworth v. Holdsworth,720 P.2d 326(Okla. 1986), that the 1983 amendment did not apply retroactively to alimony provisions of a decree of divorce imposed prior to the effective date of the statute, November 1, 1983.Holdsworthconcerned the reduction of support alimony due to a change in the movant's financial situation.

[9] Even beforeHoldsworthwas published, the legislature in an apparent attempt to further clarify this statute, amended subsection E, stating that "The provisions of this subsection shall have retrospective and prospective application with regards to modifications for the purpose of obtainingPage 1140support. . . ."4In a further attempt to clarify the statute, the legislature has recently enacted yet another amendment to § 1289 in House Bill 1286.5The new amendment in subsection G provides:
The provisions of subsections D and E of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered. The imperative language of the latest legislative amendment precludes an interpretation that would provide for prospective application only. The language of the amendments is progressively stronger and supports the conclusion that the legislature intended that trial courts have the power to modify support alimony payments regardless of the date that the divorce decree was entered.


[10] Having made such a finding, we must decide whether the legislature has the power to retrospectively apply the statute. One method of examination is to determine whether the right to support alimony is vested. This approach has been the traditional method of determining whether a right is protected from invasion of the legislature under Article 2, §§ 7, 15 of the Constitution of Oklahoma. If the right is vested, the authorities are both clear and strong that it cannot be destroyed or impaired except by due process of law.Baker v. Tulsa Building Loan Ass'n,179 Okla. 432,66 P.2d 45, 48 (Okla. 1937). TheBakerCourt held that a right was vested when the right of enjoyment, present or prospective, has become the property of some particular person or persons as a present interest.Baker,66 P.2d at 48.

[11] An analysis of the statute under this approach would dictate that we determine whether support alimony is terminable or modifiable, and if so, we could conclude that the right is not vested because it would not be a present interest. This Court has held that death of either party will terminate alimony support payments absent agreement to the contrary.May v. May,596 P.2d 536(Okla. 1979). Under § 1289, an award of support alimony is now terminable upon death, remarriage, or cohabitation with a member of the opposite sex. Like child support, under § 1289, it is now modifiable. Since support alimony is terminable and modifiable, then the right is not vested at the time of the decree, but only at the time each payment becomes due.6

[12] The approach of determining that a right is not vested, and concluding therefore that no due process rights have been violated has been criticized.7Describing a right as "vested" is merely conclusional, as the courts must decide what constitutes such a right.8InUsery v. Turner Elkhorn MiningCo.,428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) the Supreme Court of the United States examined the constitutionality of the Black Lung Benefits Act of 1972 because of its retrospective effectPage 1141upon coal mine operators, who attacked the Act on several grounds including that the Act violated the Fifth Amendment Due Process Clause. The Court upheld the constitutionality of the Act stating that legislation which readjusts rights and burdens is not unlawful solely because it upsets otherwise settled expectations. The test the Court used was whether the measure enacted by Congress approached the problem of cost spreading rationally. The majority opinion refused to decide whether a broader cost-spreading scheme would have been wiser or more practical under the circumstances, deferring to Congress on that matter.

[13] The legislature generally may overcome the traditional bias against retrospective statutes as long as it rationally relates the legislation to a legitimate governmental purpose, and if that rational relationship is present, the law may be upheld even though it may impair recognizable property rights.9As inUsery,the legislation before this Court is an attempt by the legislature to readjust the rights and burdens of the divorced parties in the area of support alimony. The regulation of marriage and divorce is entirely a legislative question, and one which should and must be controlled by legislative question, and one which should and must be controlled by legislative enactment.Irwin v. Irwin,3 Okla. 186,41 P. 369, 372 (1895). Accordingly, the property division and support have a legitimate governmental purpose. After support alimony has been set, the party receiving the support can only be said to have a settled expectation of continuing to receive that support, because the death of the supporting party would end the support. Had the parties remained married, a change in the financial circumstances of the parties would inevitably result in a change in their standard of living. Prior law did not allow for contingencies of changed circumstances as the amended law does. Such a provision is made concerning child support whenever circumstances render such a change proper. 12 O.S.Supp. 1986 § 1277[12-1277]. Likewise, the legislature has decided that change circumstances in the area of alimony support should allow for changes in obligations and benefits provided between the parties. We find that the legislation before us is rationally related to the legitimate legislative purpose of regulating divorces.

[14] Section 1289 of title 12, and its recent amendments provide that support alimony, no matter when awarded, is now modifiable. This leaves to the district courts the decision of whether or not to modify the support. All of the objections as to the equity of the situation, including consideration of the effect the award of support alimony had upon the property division, the reliance the parties had upon the law at the time of the divorce decree, whether or not the cohabitation of the former spouse with a member of the opposite sex continued after modification of the statute, and any other equitable matter may be considered by the trial court.

[15] We herein hold that the intent of the legislature can be retrospectively effected. Accordingly, we overruleSmith v.Smith,652 P.2d 297(Okla. 1982), andHoldsworth v. Holdsworth,720 P.2d 326(Okla. 1986), reverse the order of the trial court, and remand this case for a disposition in a manner not inconsistent with this opinion.

[16] REVERSED AND REMANDED.

[17] DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, LAVENDER and WILSON, JJ., concur.

[18] SIMMS, OPALA, KAUGER and SUMMERS, JJ., dissent.
[19] OPALA, Justice, with whom SIMMS, KAUGER and SUMMERS, JJ., join, dissenting.
[20] The court today 1) sanctions judicial modification of support alimony obligations on grounds not authorized by law at the time of the monetary award's adjudication and 2) holds free from constitutional infirmity the terms of 12 O.S.Supp. 1987 § 1289[12-1289](G),Page 1142enactedafterthis appeal was lodged,1which provide that the "voluntary cohabitation" ground for alimony modification allowed by § 1289(D)2are to be given retrospective effect. It is my view that, like other money judgments, support alimony awards — both as to accrued and unaccrued portions of the decreed obligation — embodyvestedrightsthat areconstitutionally shielded from diminutionby after-enacted legislation. I hence recede from the court's pronouncement.
I.
[21] CRITICAL FACTS IN LITIGATION
[22] Appellant's 1984 motion sought modification of a divorce decree's monetary support alimony award. Movant relied upon obligee's voluntary cohabitation, a ground first allowed by § 1289(D).3The decree was rendered in January, 1979; the statute that authorized the modification sought below became effective October 1, 1979 —afterthe award's rendition.4The trial court held that the benefits of the § 1289(D) alimony reduction remedy did not avail to an obligor whose support duty stood decreedbeforethe effective date of that enactment. I would today affirm the nisi prius ruling as a correct exposition of our fundamental law.
II.

[23] JUDGMENTS ARE CONSTITUTIONALLY PROTECTED BY ART. V, § 54, OKLA. CONST.5FROM THE EFFECT OF AFTER-ENACTED LEGISLATION

[24] Monetary support alimony adjudicated in a divorce decree constitutes a judicially created pecuniary obligation which is protected from the effect of after-enacted legislation on a footing equal to a money judgment.6The terms "judgment" and "decree" are synonymous. Judgments embody all the rights that necessarily accrue and absolutely vest in the creditor,7because they signify a final determination of the parties' rights in an action or proceeding.8Page 1143

[25] An alimony award is in some features different from other adjudicated monetary obligations.9It is not dischargeable in bankruptcy;10it can be enforced by contempt;11and it may be modified or terminated.12Despite these varying characteristics which are present in alimony awards but not in other money judgments, the protections affordable to the latter by Art. V, § 54, Okla. Const., also apply to the former with undiminished force.

[26] There isno questionthat support alimony is modifiable and other money judgments are not. The issue here iswhat lawmust govern when the remedy of modification is sought in post-decree stages. Nothing inStanfield v. Stanfield13or in other extant jurisprudence supports the court's conclusion today that when modification remedy is invoked, anynewstatutory ground not in force at the time the award was rendered can be available to the movant as a legal basis for altering the alimony's decreed value.14Modifiability does noteo ipsovitiate the award's fundamental naturequaadjudicated obligation for the payment of money that is protected by § 54 from changes made by after-enacted legislation.15

[27] A judgment's effect and validity must be governed by the law in forceat the time of its rendition;neither can be adverselyaffectedby later changes in the applicable law.16Judgments comprise obligations of the highest nature known to law.17Rights reflected in a judgment are constitutionally shielded from legislative interference by after-enacted statutes.18

[28] That portion of a support alimony obligation which is unmodified and unterminated at the time of its accrual stands on a constitutional footingidenticalwith any other money judgment and is hence protected absolutely by § 54.19Section 54 clearly mandates thatunaccruedinstallments be shielded also — not from modification or termination on pre-existing grounds — but from anynewcontingencies or conditions that have been imposed since the award's rendition. Property interests in a judgment are "vested" rights that are constitutionally insulated from the effect of later-passed statutory changes.20The legislature is powerless to burden judgments with conditions not present in the law at the time of adjudication. Judicial imposition ofnewconditions on prior judgments is equally prohibited by fundamental state law.21

[29] Unaccrued monetary alimony also is protected by the"proceedings begun"clause in § 54.22That clause leaves unaffected by later-passed legislation any proceedings that were begunbeforethe effective date of any new law. Efforts to enforce decreed alimony must be characterized as a proceeding begun under legislation in effect at the time the award was rendered.Page 1144Within the meaning and contemplation of § 54everysuch proceeding continues in a pending status from the point of the alimony's allowance until the award is fully satisfied by payment or terminated by the obligor's death. In short,allquests for post-decree modification or termination of alimony are to be deemedproceedings begunwhen the award was rendered. The movant's remedy — governed by the law in force at that time — stands unaffected by any subsequent changes.23The judiciary as well as the legislature is prohibited by the unequivocal terms of § 54 from granting relief based on after-enacted legislation.24Neither the courts nor the lawmaking body may burden unaccrued alimony liability with conditions upon the decreed obligation which were absent from the law at the time of adjudication.25

[30] By providing in § 1289(G) that the § 1289(D) voluntary cohabitation ground for modifying alimony payments is applicable to awards renderedbeforethe latter subsection's effective date, the legislature has created a constitutionally impermissible escape hatch for some alimony obligors and has deprived the adversely affected creditors of their fundamental law's protection under Art. V, § 54, Okla. Const.
III.
[31] SECTION 1289(G)
[32] VIOLATES THE SEPARATION OF POWERS DOCTRINE
[33] The functions of government are divided by our fundamental law among three branches, each of which is forbidden from encroaching upon the powers and responsibilities of the other.26Legislative power is mainly confined to making law, while the judiciary is invested primarily with adjudicative function — the authority to hear and determine forensic disputes.27

[34] A judgment's validity depends upon the jurisdiction of the court that renders it.28If a judgment were rendered by a court without subject matter cognizance,the enactment of astatute that attempts to confer after-the-fact jurisdiction uponthat court would constitute an invalid exercise by thelegislature of judicial authority.29A law-making bodylacks powerto validate a judgment void when rendered. It is equally impotent retroactively to divest creditors of their vested rights in an adjudicated obligation.

[35] Insofar as § 1289(G) sanctions changes in the terms of judgments renderedbeforethe effective date of the statute in force at the time of rendition, it makes settled alimony claims vulnerable to readjudication upon grounds unknown at the time of the dispute's termination. The subsection clearlydepreciatesthe value of decreed monetary support awards. Legislative alteration of judicially determined civil liability constitutes an exercise of adjudicative power that does not reside in the lawmaking body.30Page 1145
IV.

[36] SECTION 1289(G) VIOLATES ART. II, §§ 7,312332AND 2433AND ART. V, § 4634OF THE OKLAHOMA CONSTITUTION

[37] The rights that become vested in every judgment constitute private property within the meaning of Art. II, §§ 7, 23 and 24, Okla. Const.35Sections 23 and 24 shield those rights fromanytaking for public use without just compensation as well as from taking for private use with or without compensation. Section 7 interdicts deprivation of property without due process of law. The terms of 12 O.S.Supp. 1987 § 1289[12-1289](G),36which authorize modification of judgments rendered before the section's effective date, operate to extinguish vested or accrued property rights protected by the cited provisions of our fundamental law.37

[38] Because § 1289(G) also impairs the enforcement of anarrowsubclassof judgments — unaccrued monetary support alimony under awards rendered before the effective date of § 1289(D) — its terms violate Art. V, § 46, Okla. Const.38The cited provision of our fundamental lawabsolutely and categoricallymandatesthat statutory changes in the methods for collecting debts or enforcing judgments be made by legislation that affectsalladjudicated obligationsin like manner.39
V.
[39] SUMMARY
[40] Article V, § 54, Okla. Const., makes monetary support alimony awards — both as toPage 1146accrued and unaccrued installments — impervious and invulnerable to tinkering by after-enacted legislation. The § 1289(D) ground for modification, if enactedafterthe affected decree's rendition, is not available to the obligor as a basis for modification. Recently enacted § 1289(G) violates the doctrine of separation of powers and offends Art. II, §§ 7, 23 and 24, as well as Art. V, §§ 46 and 54, Okla. Const.

[41] I would continue to stand by the teachings ofSmith40andHoldsworth,41which are both overruled by today's pronouncement; I would affirm the trial court's order denying relief to the obligor and strike down § 1289(G) as unconstitutional.
  1. The 1983 amendment was in effect at the time the motion to modify was filed.See,1983 Okla. Sess. Laws, ch. 86, § 1 [86-1]. ↩
  2. Subsection D of 12 O.S., § 1289 was added, and became effective on October 1, 1979, 1979 Okla. Sess. Laws, ch. 278, § 1, and has been amended three times since then.See,1983 Okla. Sess. Laws, ch. 86, § 1 [86-1]; 1985 Okla. Sess. Laws, ch. 188, § 1; and 1987 Okla. Sess. Laws, ch. 130, § 1, effective June 3, 1987. The statute provides:

    The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances of either party to the divorce relating to need for support or ability to support. As used in this subsection, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage. The petitioner shall make application for modification and shall follow notification procedures used in other divorce decree modification actions. The court that entered the divorce decree shall have jurisdiction over the modification application. ↩
  3. 1983 Okla. Sess. Laws, ch. 86, § 1 [86-1], effective Nov. 1, 1983. ↩
  4. 1985 Okla. Sess. Laws, ch. 188, § 1, effective Nov. 1, 1985. ↩
  5. 1987 Okla. Sess. Laws, ch. 130, § 1. ↩
  6. The case cited by the dissent in footnote 6,Stanfield v.Stanfield,67 Okla. 56,168 P. 912, 914 (1917), supports the proposition that support alimony is terminable, and therefore is not vested.Stanfieldholds:

    Alimony decreed to a wife in a divorce is as much a debt,until the decree is recalled or modified,as any judgment for money is, and there is authority to the effect that the decree in favor of Mrs. Stanfield operated to cause an indebtedness to arise in her favoras each installment of alimony fell due.[Emphasis added, citation omitted.]

    There is, in fact, support in our case law for the proposition that support alimony stands in a class by itself. The case ofGrattan v. Tillman,323 P.2d 982, 984 (Okla. 1957) quotesCommons v. Bragg,183 Okla. 122,80 P.2d 287, 290 (1938) as follows:

    [A]n order for the payment of alimony possesses different characteristics from an ordinary debt since it is designed to secure the performance of a legal duty in which the public has an interest. ↩
  7. DeMars,Retrospectivity and Retroactivity of CivilLegislation Reconsidered,Ohio N.U.L.Rev. 253 (1983). ↩
  8. 16A Am.Jur.2dConstitutional Law§ 669 (1979). ↩
  9. J. Nowak, R. Rotunda, J. Young, Constitutional Law, 476 (2d ed. 1983). ↩
  10. The terms of 12 O.S.Supp. 1987 § 1289[12-1289](G),which becameeffective on June 3, 1987,provide:

    The provisions of subsections (D) and (E) of this sectionshall have retrospectiveand prospectiveapplication with regards to modificationsof the provisions of a final judgment or order for alimony as support, or of a divorce decree pertaining to the payment of alimony as support,regardless of thedate that the order, judgment, or decree wasentered.[Emphasis added.] ↩
  11. The pertinent text of 12 O.S.Supp. 1987 § 1289[12-1289](D) provides:The voluntary cohabitation of a former spouse with amember of the opposite sex shall be a ground tomodify provisions of a final judgment or order foralimony as support.If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances. . . . [The underscored terms became effective October 1, 1979 and are codified in 12 O.S. 1981 § 1289[12-1289](D). They remain unchanged since their effective date.] ↩
  12. For pertinent text of § 1289(D) seesupranote 2. ↩
  13. See Okla.Sess.Laws 1979, Ch. 278 § 1 at 793-794. ↩
  14. The terms of Art. V, § 54, Okla. Const., provide:The repeal of a statute shall notrevive a statute previously repealed by such statute, nor shall such repealaffect any accrued right,or penalty incurred,or proceedings begun by virtue of suchrepealed statute.[Emphasis added.]

    This section applies not only to repealed statutes but also to any legislative changes by amendment. SeeLee v. Volkswagen ofAmerica, Inc., infranote 7 andPrudential Property andCasualty Company v. Grimes,Okla.,725 P.2d 1246, 1250 [1986]. ↩
  15. Stanfield v. Stanfield,67 Okla. 56,168 P. 912, 914 [1917]. ↩
  16. Lee v. Volkswagen of America, Inc.,Okla.,743 P.2d 1067, 1069 [1987];Timmons v. Royal Globe Ins. Co.,Okla.,713 P.2d 589, 594 [1985];Mayhue v. Mayhue,Okla.,706 P.2d 890, 894 [1985];Oklahoma Water Res. Bd. v. Central Okla. M.C. Dist.,Okla.,464 P.2d 748, 755 [1969]. See also,Prudential Propertyand Casualty Company v. Grimes, supranote 5. ↩
  17. Finnell v. Finnell,113 Okla. 269,230 P. 912, 913 [1924];Henderson v. Arkansas,71 Okla. 253,176 P. 751, 753 [1918]. ↩
  18. Grattan v. Tillman,Okla.,323 P.2d 982, 984 [1958]. ↩
  19. 11 U.S.C. § 523(a)(5). ↩
  20. 12 O.S. 1981 § 1276[12-1276];Potter v. Wilson,Okla.,609 P.2d 1278, 1281 [1980]. ↩
  21. 12 O.S.Supp. 1987 § 1289[12-1289](B), (D) and (E);Dickason v.Dickason,Okla.,607 P.2d 674, 676 [1980];Funnell v. Funnell,Okla.,584 P.2d 1319, 1322 [1978]. ↩
  22. Seesupranote 6. ↩
  23. SeeMorley v. Hurst,174 Okla. 2,49 P.2d 546, 548 [1935] andCrump v. Guyer,60 Okla. 222,157 P. 321, 322 [1916]. ↩
  24. SeeStanfield v. Stanfield, supranote 6. ↩
  25. Mayhue v. Mayhue, supranote 7;Lee v. Volkswagen ofAmerica, Inc., supranote 7;Timmons v. Royal Glove InsuranceCompany, supranote 7;Dickason v. Dickason, supranote 12 at 677;Prudential Property and Casualty Company v. Grimes, supranote 5. ↩
  26. Vaughn v. Osborne,103 Okla. 59,229 P. 467, 470 [1924]. ↩
  27. Art. V, § 54, Okla. Const., quoted atsupranote 5. See also the authorities cited atsupranote 7. ↩
  28. Hammons v. Muskogee Medical Center Authority,Okla.,697 P.2d 539, 542 [1985]. ↩
  29. Lee v. Volkswagen of America, Inc., supranote 7;Timmons v. Royal Globe Insurance Co., supranote 7;Crump v.Guyer, supranote 14. ↩
  30. See discussion in part III of this dissent. ↩
  31. For the pertinent text of Art. V, § 54, Okla. Const., seesupranote 5. ↩
  32. SeeFirst Nat. Bank of Pauls Valley v. Crudup,Okla.,656 P.2d 914, 916 [1983];State v. McCafferty,25 Okla. 2,105 P. 992, 996 [1909]. ↩
  33. State v. Worten,167 Okla. 187,29 P.2d 1, 4 [1934]. ↩
  34. Allgood v. Allgood,Okla.,626 P.2d 1323, 1325 [1981], is but one example of this court's recognition that support alimony may not be modified on grounds that were not in force when the award was rendered. ↩
  35. Art. IV, § 1, Okla. Const.;Puckett v. Cook, Okla.,586 P.2d 721, 722 [1978];Jones v. Freeman,193 Okla. 554,146 P.2d 564, 573 [1944], appeal dismissed322 U.S. 717, 64 S.Ct. 1288, 88 L.Ed. 1558.

    The terms of Art. IV, § 1, Okla. Const., provide:

    "The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct,and neither shall exercise the powersproperly belonging to either of the others." [Emphasis added.] ↩
  36. Tweedy v. Oklahoma Bar Association,Okla.,624 P.2d 1049, 1054 [1981];In re Courthouse of Okmulgee County,58 Okla. 683,161 P. 200, 201 [1916]. ↩
  37. Reynolds v. Brock,122 Okla. 110,250 P. 999, 1000 [1926]. ↩
  38. Reynolds v. Brock, supranote 28. ↩
  39. Each separate department of government must use restraint to avoid encroaching upon the functions assigned to some other branch. SeeSterling Refining Co. v. Walker,165 Okla. 45,25 P.2d 312, 318 [1933] andEarl v. Tulsa County Dist. Court,Okla.,606 P.2d 545, 547 [1980]. ↩
  40. The terms of Art. II, § 7, Okla. Const., provide:

    "No person shall be deprived of life, liberty, orproperty, without due process of law." [Emphasis added.] ↩
  41. The pertinent terms of Art. II, § 23, Okla. Const., provide:

    "No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner. . . ." ↩
  42. The pertinent terms of Art. II, § 24, Okla. Const., provide:

    "Private property shall not be taken or damaged for public use without just compensation. * * *" ↩
  43. The pertinent terms of Art. V, § 46, Okla. Const., provide:

    "The Legislature shall not, except as otherwise provided in this Constitution,pass any local orspecial lawauthorizing * * * providing or changing the methods for the collection of debts, or the enforcement of judgments * * *"[Emphasis added.] ↩
  44. SeeSwatek v. Board of Regents of Oklahoma Colleges,Okla.,535 P.2d 295, 298 [1975], citingGraham v. City ofDuncan,Okla.,354 P.2d 458, 461 [1960]. ↩
  45. Seesupranote 1 for the pertinent text and effective date of § 1289(G). ↩
  46. SeeReynolds v. Brock, supranote 28 at 1001 andSwatekv. Board of Regents of Oklahoma Colleges, supranote 35.

    InSwatek,a paving district was established by a city ordinance that imposed assessments against each benefited lot, payable in annual installments, and created a lien upon each. After issuance of paving bonds, but before the last installments came due, the Board of Regents purchased land within the district. Owner of the bonds secured by affecting the property sought payment after the installments became delinquent. Because the installments were the only source from which the bonds could be paid, and since the owner was precluded by statute from foreclosing upon the liens against the Regents' land, a reverse condemnation proceeding was filed. The court held that the land purchase by the Regents, made without satisfying the liens, amounted to a "taking" of property for public use without just compensation.

    By analogy, just as the state was unable to purchase landafterassessments were levied andunder color of statute divesta lienholder of the right to payment,so is the legislatureprohibited from using after-enacted legislation to divestjudgment holders of the rights that became vested in them at thetime of final adjudication. ↩
  47. Seesupranote 34 for the pertinent text of Art. V, § 46, Okla. Const. ↩
  48. SeeMaule v. Independent School District No. 9 of TulsaCounty,Okla.,714 P.2d 198, 204 [1986];Barrett v. Board ofCom'rs of Tulsa County,185 Okla. 111,90 P.2d 442, 446-447 [1939]; see also,Prudential Property and Casualty Company v.Grimes,(Opala, J., concurring)supranote 5 at 1251. ↩
  49. Smith v. Smith,Okla.,652 P.2d 297[1982]. ↩
  50. Holdsworth v. Holdsworth,Okla.,720 P.2d 326[1986]. ↩