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SCHWEIGERT v. SCHWEIGERT2015 OK 20Case Number: 112483Decided: 04/14/2015THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2015 OK 20, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. 
UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. 




IN RE THE MARRIAGE OF:
DENISE M. SCHWEIGERT, Petitioner/Appellee,v.TONY W. 
SCHWEIGERT, Respondent/Appellant.
ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 
I
¶0 Mother petitioned for dissolution of marriage, seeking temporary and 
permanent custody of the two minor children with supervised visitation with 
father. Father was personally served and did not file an answer or entry of 
appearance, but appeared at hearing on the application for temporary order. The 
default hearing on final order was set on the court docket without mother filing 
a motion or giving notice of the default hearing to father. The district court 
held a hearing on the divorce decree by default without father's attendance. On 
the same day, the trial court granted the divorce, awarded custody of children 
to mother with supervised visitation with father, and awarded $283.01 per month 
to mother for child support. Two years later, father filed a motion to vacate 
the divorce decree. The district court denied father's motion to vacate, finding 
father had not filed an entry of appearance pursuant to 12 O.S.2011, § 2005.2, and exempted mother from 
giving father notice of the hearing for default judgment. Father appealed, and 
the Court of Civil Appeals affirmed. This Court granted the petition for writ of 
certiorari.
COURT OF CIVIL APPEALS' OPINION VACATED;DISTRICT COURT'S 
ORDER DENYING MOTION TO VACATE REVERSEDAND REMANDED WITH 
INSTRUCTIONS.
Gary L. Cantrell, Oklahoma City, Oklahoma, for the Appellant.Marianne 
Miller and Amanda C. Dockrey, The Parsons Law Firm, P.L.L.C., Shawnee, Oklahoma, 
for the Appellee.
TAYLOR, J.
¶1 The dispositive question raised for our review is whether a party must 
file a motion for default and give the adverse party notice under Rule 10 of the 
Rules for District Courts, 12 O.S.2011, ch. 2, app. (Rule 10), when the adverse 
party fails to file an answer or an entry of appearance but physically appears 
at a hearing. We answer in the affirmative.
I. FACTS AND ALLEGATIONS
¶2 On June 4, 2010, Denise M. Schweigert (Mother) filed a petition for 
dissolution of her marriage to Tony W. Schweigert (Father) and an application 
for a temporary order. Mother sought both temporary and permanent custody of the 
couple's two children with supervised visitation with Father. On June 15, 2010, 
Father was personally served at CeeDee's Country Store in Dustin, Oklahoma, with 
the summons, the petition for dissolution of marriage, the application for a 
temporary order, and the order for hearing. Father appeared at the hearing on 
August 9, 2010. However, he did not file an answer or entry of appearance.
¶3 On August 8, 2011, one year after the temporary custody hearing, the 
August 9, 2010 order was filed, giving Mother temporary custody of the children, 
allowing Father supervised visitation as agreed by the parties, and setting the 
temporary child support of $283.01 per month. The temporary order acknowledged 
that the "Respondent, TONY W. SCHWEIGERT, appear[ed] in person and Pro 
se" at the hearing. The record fails to show that Father saw the temporary 
order or had a chance to contest its contents before it was filed. The record 
also fails to show that a copy of the temporary order was ever sent to 
Father.
¶4 In the meantime on August 2, 2011, Mother's attorney tendered a "minute 
order" setting the matter "for default on" August 24, 2011. Mother admits that 
she did not give Father notice of the hearing on taking default judgment. The 
divorce decree was filed on the same day as the hearing. It stated that 
"Respondent, TONY W. SCHWEIGERT, appears not and is in default after having been 
properly served on June 15, 2010." Mother did not file a motion for default, and 
neither the decree nor any other document in the record says anything about any 
attempt to serve Father with notice of the hearing on the default judgment or 
whether his address was unknown. Nonetheless, Mother was granted a divorce, 
custody of the minor children with supervised visitation with Father, and child 
support of $283.01. Further, neither the transcript of the hearing for a 
temporary order nor the transcript of the August 24, 2011 hearing was designated 
for inclusion in the record, and the Court cannot ascertain what occurred during 
either hearing. 
¶5 On July 1, 2013, Father filed a motion to vacate the divorce decree based 
on fraud; and, on August 5, 2013, he filed an amended motion to vacate based on 
fraud and lack of due process. He contended that Mother defrauded him into not 
filing an answer and that he did not receive notice of the default hearing as 
required by Rule 10. Mother's response to the amended motion to vacate, like her 
response to the original motion to vacate, was in the form of an answer to a 
petition merely admitting or denying the allegations in the amended motion to 
vacate and was void of legal argument. At the hearing on the motion to vacate 
the default judgment, the district court stated: "I don't think that just 
appearing in court triggers making an appearance." On December 17, 2013, a 
district court order was filed stating the matter came before the judge on 
October 22, 2013, denying the motion to vacate and finding "Respondent failed to 
meet Rule 10 requirement of entry pursuant to 12 O.S. § 2005.2, and therefore Petitioner was not required 
to provide notice of default hearing to Respondent." Respondent appealed the 
denial of the motion to vacate, and the Court of Civil Appeals affirmed the 
judgment. This Court granted the petition for writ of certiorari.
II. STANDARD OF REVIEW
¶6 This Court reviews a district court's order vacating or refusing to vacate 
a judgment for abuse of discretion. Ferguson Enters., Inc. v. H. Webb 
Enters., Inc., 2000 OK 
78, ¶ 5, 13 P.3d 
480, 482. Considerations in our review of an order vacating or refusing to 
vacate a default are: (1) the rule that default judgments are disfavored, (2) 
the decision to vacate a default judgment should be exercised so as to promote 
justice, and (3) refusal to vacate a default judgment requires a stronger 
showing of abuse of discretion than an order vacating a default judgment. 
Id. We are also mindful here that the default judgment impacted a 
fundamental right - a parent's right to the companionship, care, custody, and 
management of his child. Barber v. Barber, 2003 OK 52, ¶ 9, 77 P.3d 576, 580.
¶7 Although this Court reviews a district court's denial of a motion to 
vacate for abuse of discretion, the order denying a motion to vacate, like a 
motion for a new trial, will be reversed if the district court erred with 
respect to an unmixed question of law. Jones, Givens, Gotcher & Bogan, 
P.C., v. Berger, 2002 OK 31, ¶ 5, 46 P.3d 698, 701. The district court's construction 
and application of Rule 10 to the undisputed facts before it presents a pure 
question of law subject to de novo review. Id.
III. ANALYSIS
¶8 A district court's judgment shall be vacated and a new trial granted upon 
an aggrieved party's application for, among other things, an irregularity in the 
proceedings or court's order affecting the party's substantial rights. 
12 O.S.2011, §§ 651(1), 1031(3). When Father 
asserts that Mother failed to file a motion for default judgment and give him 
notice as required by Rule 10, he is asserting an irregularity in the 
proceedings. See Knell v. Burnes, 1982 OK 35, ¶ 5, 645 P.2d 471, 473 ("The rendition of a premature 
judgment is an irregularity which may be vacated under § 1031(3) if the rights 
of the party have been prejudiced because of a failure to adhere to the 
established rules or mode of procedure in the orderly administration of 
justice.").1
¶9 Mother argues she was excused from giving Father notice of the default 
hearing because his address was unknown and he had not filed an entry of 
appearance. Relying on Ferguson Enterprises, Inc. v. H. Webb Enterprises, 
Inc., 2000 OK 
78, ¶ 5, 13 P.3d 
480, 482, Mother asserts that hardships, specifically the parties' 
subsequent remarriages, warrant the denial of the motion to vacate. The record 
on appeal does not show that Mother asserted hardship as a reason for denying 
the motion to vacate in the trial court. With few exceptions, jurisdiction being 
one, a party who fails to assert a defense in the trial court is foreclosed from 
asserting it for the first time on appeal. Okla. Dep't of Sec. v. Wilcox, 
2011 OK 82, ¶ 17, 267 P.3d 106, 110. Further, Mother relies on a 
transcript which was not designated for inclusion in the record on appeal for 
the proposition that Father's address was unknown.2 It was Mother's burden to 
produce a record supporting this allegation and the allegation that the parties 
have both remarried. Rule 1.28, Rules of the Supreme Court, 12 O.S.2011, ch. 15, 
app. 1; Phillips v. Hedges, 2005 OK 77, ¶ 15, 124 P.3d 227, 232. Because Mother failed in this 
regard, this Court will not consider Mother's argument as to these two 
assertions.
¶10 Turning now to Father's argument, we consider the meaning of the phrase 
"made an appearance" in Rule 10 which provides, in pertinent part:3


In matters in default in which an appearance, general or special, has been 
made or a motion or pleading has been filed, default shall not be taken until a 
motion therefore has been filed in the case and five (5) days notice of the date 
of the hearing is mailed or delivered to the attorney of record for the party in 
default or to the party in default if he is unrepresented or his attorney's 
address is unknown. If the addresses of both the party and his attorney are 
unknown, the motion for default judgment may be heard and a default judgment 
rendered after the motion has been regularly set on the motion and demurrer 
docket. It shall be noted on the motion whether notice was given to the attorney 
of the party in default, to the party in default, or because their addresses are 
unknown, to neither.
Notice of taking default is not required where the defaulting party has not 
made an appearance. . . .
Notice of taking default is not required under several other scenarios, and 
Mother does not assert that any of these are applicable here. Rather, Mother 
contends that the phrase "made an appearance" is the equivalent of filing an 
entry of appearance pursuant to Title 12, Section 2005.2.
¶11 When construing rules, as with statutes, we first look to the plain 
meaning of the provision. See W.R. Allison Enters., Inc. v. CompSource 
Okla., 2013 OK 
24, ¶ 15, 301 P.3d 
407, 412 ("The primary goal in reviewing a statute is to ascertain 
legislative intent, if possible, from a reading of the statutory language in its 
plain and ordinary meaning."); McClure v. ConocoPhillips Co., 
2006 OK 
42, ¶ 17, 142 P.3d 
390, 396 ("Administrative rules, like statues, are given a sensible 
construction bearing in mind the evils intended to be avoided."). If a 
provision's wording is unambiguous, its evident meaning must be accepted and 
there is no reason or justification for the use of interpretative devices to 
fabricate a different meaning. Hines v. Winters, 1957 OK 334, ¶ 0, 320 P.2d 1114, 1115 (Syllabus by the Court).
¶12 Appearance is defined as "coming into court as party to a suit." 
Black's Law Dictionary 89 (5th ed. 1979). When one makes a general 
appearance, the person is submitting to the jurisdiction of the court as if the 
person had been served with the petition and summons and cannot then contest the 
sufficiency of the proceeding's notice. 12 O.S.2011, § 2004(C)(5) ("An acknowledgment 
on the back of the summons or the voluntary appearance of a defendant is 
equivalent to service."); Porter v. Okla. Bacone Coll. Trust, 
1959 OK 174, ¶ 7, 346 P.2d 335, 337 (Stating that when a party appears 
for any purpose, other than to contest jurisdiction, he enters a general 
appearance and waives the right to challenge jurisdiction). An appearance is any 
act, including participation in a hearing for a temporary order, which brings 
the person under the court's jurisdiction.4
¶13 "To make" has a different meaning than "to file." "To file" something 
means to "deposit in the custody or among the records of a court," 
Black's at 566, in this case "filing an entry of appearance." "To make" 
or "made" does not require the formality of filing a document. The difference is 
seen in objections to evidence at trial. A party may make an objection by filing 
a motion in limine. Bierman v. Aramark Refreshment Servs., Inc., 
2008 OK 29, ¶ 8, 198 P.3d 877, 880. A party also may make an objection 
to evidence or testimony at trial by orally interjecting the objection without 
the formality of filing a motion. Hair v. Wilson, 1964 OK 92, ¶¶ 13-15, 391 P.2d 789, 791-92. As illustrated, filing a motion 
in limine is one method of making an objection, it is not the only 
method. So filing a pleading or an entry of appearance are two methods of 
"making an appearance"; they are not the only methods. In contrast to Title 12, 
Section 2005.2's use of the phrase "shall file an entry of 
appearance," (emphasis added), Rule 10's explicit requirement of filing a motion 
and giving notice of default is restricted to the defendant's filing of an entry 
of appearance or pleading.
¶14 The differentiation of the two phrases, "made an appearance" and "file an 
entry of appearance" is supported by the history of Title 12, Section 2005.2 and 
Rule 10. Rule 10's requirement of filing a motion for default and notice of the 
hearing after the opposing party's appearance was adopted as part of the Rules 
for the District, Superior, and Common Pleas Courts of Oklahoma as early as 
1961. 12 O.S.1961, ch. 2, app., r. 10.5 Although the statute was amended and changed to a rule, 
the motion and notice requirements after a party's appearance have continued 
through to the present.6 Title 12, Section 2005.2's requirement for filing an 
entry of appearance was not adopted until 2002. 2002 Sess. Laws 2278-2279 (ch. 
468, § 22). Because Section 2005.2 was not adopted, and therefore did not exist, 
until after Rule 10, Rule 10's language of making an appearance cannot be 
limited to filing an entry of appearance pursuant to Section 2005.2.
¶15 Rule 10's requirement for filing a motion and giving notice is applicable 
any time a party appears before a court, whether by filing a document or 
physically participating in a hearing. Rule 10 provides not only that a motion 
must be filed and notice given to a party who has appeared, but that the motion 
must be filed even if no notice was required. Rule 10 expressly provides: 


If the addresses of both the party and his attorney are unknown, the 
motion for default judgment may be heard and a default judgment rendered 
after the motion has been regularly set on the motion and demurrer 
docket. It shall be noted on the motion whether notice was given to the 
attorney of the party in default, to the party in default or because their 
addresses are unknown to neither.
(Emphasis added.) This language mandates that a motion must be filed in all 
instances, even when a party fails to make an appearance, and the motion must 
recite what notice was given, and, if none were given, the reason therefore. 
Mother's failure was an irregularity in the proceedings that left the district 
court without means of determining whether she was required to give notice, and, 
if so, whether the notice conformed to due process prerequisites of entering 
judgment.
IV. CONCLUSION
¶16 Mother's failure to file a motion for default and give notice to Father 
pursuant to Rule 10 after Father had appeared at the hearing for a temporary 
order was an irregularity in the proceeding. The district court erred in denying 
Father's motion to vacate the divorce decree. The district court's order denying 
the motion to vacate is reversed and the cause is remanded to the district 
court. On remand, the district court is directed to revisit the motion to vacate 
in light of this opinion. The Court of Civil Appeals' opinion is vacated.
COURT OF CIVIL APPEALS' OPINION VACATED; DISTRICT COURT'S ORDERDENYING 
MOTION TO VACATE REVERSED AND REMANDED WITH INSTRUCTIONS. 
Concur: Reif, C.J.; Combs, V.C.J.; and Kauger, Watt, Winchester, Taylor, 
Colbert, and Gurich, JJ.
Concurs Specially: Edmondson, J.
FOOTNOTES
1 An aggrieved party 
seeking a judgment's vacation and new trial for an irregularity in the 
proceedings or order generally must commence the proceedings within three years. 
12 O.S.2011, § 1038. A court has authority to 
vacate a judgment after the three years if (1) Title 12, Section 696.2 requires 
a copy of the judgment be mailed to the moving party, (2) the moving party did 
not prepare the judgment, and (3) the court record fails to show that a copy of 
the judgment was mailed to the moving party within three days, exclusive of 
weekends and holidays after it was filed. Id. § 1031.1(B). Under these 
factors, the district court may vacate the judgment if the motion to vacate is 
filed no later than thirty days after the record shows that a copy of the 
judgment was mailed to the moving party. Id. Here the record fails to 
show that a copy of the judgment was ever mailed to Father or how he learned of 
the final divorce decree's entry. 
Because Father was within the time limitations of Title 12, Section 1038 for 
filing the motion to vacate and the district court was within the time limits of 
Title 12, Section 1031.1, we need not address whether the divorce decree was 
void and subject to being vacated at any time. 
2 Even if Father's address were unknown, Mother failed to 
utilize alternative methods of serving Father with notice of the 
default-judgment hearing. Title 12, Section 2005(A) provides that "every written 
notice" shall be served upon each of the parties. Subsection B provides that 
service is made "by delivering a copy to the attorney or party at the last known 
address of the attorney or the party" or by electronic means if the attorney or 
party has consented to electronic service. Subsection B continues: "If no 
mailing address, physical address, or electronic address" for the attorney or 
party is known, service is effected by leaving it with the clerk of the court. 
Because the parties were married at one time, Mother should have had a 
last-known address for Father.
In like manner, Title 12, Section 696.2(B) requires, unless otherwise 
directed by the court, the attorney or party preparing a judgment to serve all 
parties, including those in default, with a file-stamped copy of the judgment 
within three days after the judgment is filed. If a party failed to appear, it 
is "sufficient to mail a file-stamped copy of the judgment, decree or appealable 
order by first-class mail to the party's last-known address." Id. Only if 
a person in default was served initially by publication is the mailing 
requirement excused. Id. 
3 In 2013, the following language was added to Rule 
10.
Once a party or an attorney provides an email address for service in a 
specific case in accordance with the Rules for Electronic Filing in the Oklahoma 
Courts, the provided email address shall serve as the appropriate address for 
purposes of notice as required by this rule, unless the filer is informed that 
the electronic transmission failed. See Rules for Electronic Filing in Oklahoma 
Courts. 2012 OK 
61.
4 In Bovasso v. Sample, 1982 OK 84, ¶ 6, 649 P.2d 521, 523, the Court recognized that notice of 
taking default was not required where the defendant had "not entered an 
appearance in the case and had filed no pleadings therein." This is consistent 
with our construction of Rule 10. This Court did not use the phrase "filed an 
appearance," choosing instead the phrase "entered an appearance," and there was 
no intimation that the defendant had appeared in open court. 
5 Rules for the District, Superior and Common Pleas 
Courts of Oklahoma, Rule 10 provided:
In all matters in default in which an appearance has been made by the 
defaulting party or by an attorney, or a pleading filed, default judgment shall 
not be taken until a motion therefor has been filed in the case and five (5) 
day's notice thereof given to the party in default or his attorney, which fact 
shall be noted on the motion. If the address of the party or attorney is 
unknown, then the motion may be heard and default judgment rendered after the 
same has been regularly set on the motion and demurrer docket. When a case has 
been regularly set for hearing on a pre-trial conference or trial docket, 
default judgment may be rendered for any party on the hearing date without 
further service of notice. 
6 Likewise, the provision making acknowledgment on the 
back of the summons or the voluntary appearance of a defendant equivalent to 
service was in effect long before Title 12, Section 2005.2. See Okla. 
Stat. ch. 2, art. VII, § 175 (1931). 



EDMONDSON, J., Concurring Specially, joined by COMBS, V.C.J., WATT, J. 

¶1 I write separately to explain that 1) the husband's physical presence at a 
hearing constituted a pro se general appearance in the District Court and 
he was entitled to a Rule 10 notice of the opposing party's motion seeking a 
default judgment, and 2) on remand the District Court should consider the wife's 
claim that the divorced status of the parties should not be vacated. 
¶2 A general appearance is made when a named party participates in a legal 
proceeding by his or her physical presence at that proceeding without preserving 
an objection to personal jurisdiction.1 Justice Opala's published separate writing thirty-five 
years ago explained that the common-law requirement of physical presence 
combined with a formal entry, or plea, or motion of record as necessary for a 
legal appearance was an "early view" that is now firmly superseded by modern 
views of procedure.2 He observed that "a writing 'spread upon the record' is 
no longer the required abracadabra of appearance" because modern views regard 
voluntary appearance as no more than knowledge of the pending proceedings 
coupled with acts from which intention to submit to the jurisdiction may be 
inferred.3 Husband's physical presence at the trial court hearing 
where he appeared pro se without preserving any objection to personal 
jurisdiction showed his knowledge of the pending proceedings coupled with acts 
from which his intention to submit to the jurisdiction of the District Court may 
be inferred. I agree with the Court's opinion that husband's physical appearance 
at the trial court hearing was a pro se general appearance and he was 
entitled to a Rule 10 notice of the wife's subsequent motion for a default 
decree.4 
¶3 The Court's opinion requires the District Court to revisit the husband's 
motion to vacate. The opinion declines to adjudicate on appeal the merits 
of the wife's claim that due to her remarriage and additional children and the 
alleged remarriage of the husband5 a hardship would be created if the divorce decree is 
vacated. I view her claim as remaining for the District Court to examine when it 
revisits the husband's motion to vacate. 
¶4 Wife alleges that 1) husband was at a court hearing in June 2010, 2) he 
did not provide a formal appearance with an address as required by 12 O. S. 2011 
§ 2005.2,6 3) he waited until more than three years later, in July 
2013 to file a motion to vacate, and 4) she was unaware of husband's residence 
at the time of her motion to vacate.
¶5 This Court has recognized a public policy that a party's marital status 
should not be held hostage by an unreasonably delayed appellate correction of 
matrimonial property and custody rights. For example, in 2001, we explained that 
the Court had "treated marital status different from other claims in matrimonial 
litigation."7 Where both parties sought a divorce the Court reversed 
the judgment of the trial court except as to the parties' status as being 
divorced.8 Similar public policies are expressed via no-fault 
divorce statutes which show that an individual's litigation to change his or her 
marital status is not something that may be prevented by his or her spouse9 and an individual's 
litigation to change marital status involves a bundle of personal constitutional 
rights that receive constitutional protection.10 Further, these policies appear to be consistent with 
those opinions recognizing that one spouse may obtain a judicially-approved 
change of his of her marital status even in the absence of a court's in 
personam jurisdiction over the non-appearing spouse.11 
¶6 Wife's claim is not clearly presented on appeal with a supporting 
appellate record, but her appellate argument appears to focus on marital 
status. We need not analyze whether wife's claim is pressed as an equitable 
defense to a mandatory procedural requirement,12 or if her claim is that notice is not required to 
adjudicate solely her marital status, or if her claim is a third alternative. 
Her claim should be addressed by the District Court in the context of addressing 
the husband's motion to vacate, and not here for the first time on appeal.13 
FOOTNOTES
1 State ex rel. Oklahoma 
Bar Association v. Mothershed, 2011 OK 84, ¶ 43, 264 P.3d 1197, 1214. 
2 ABC Drilling Co., Inc. v. Hughes Group, 
1980 OK 39, 609 P.2d 763, 770 (Opala, J., concurring in part and 
dissenting in part). The separate opinion relies, in part, on Rand v. 
Nash, 1935 OK 
1086, 51 P.2d 
296. Therein, Rand, appeared at a hearing and followed his appearance with a 
filed objection two months later; and on appeal the Court noted that Rand had 
"appeared generally at the hearing." Id. 51 P.2d at 297. 
3 ABC Drilling Co., Inc. v. Hughes Group, 
1980 OK 39, 609 P.2d at 770 (Opala, 
J., concurring in part and dissenting in part). 
4 At the time of wife's motion for default, August 2011, 
the version of Rule 10 in effect was found at 12 O.S. 2011, Ch. 2, App. Rules 
for the District Courts of Oklahoma, (eff. Jan. 1, 1982) Rule 10, Notice of 
Taking Default Judgment, which states that "In matters in default in which an 
appearance, general or special has been made or a motion or pleading has been 
filed, default shall not be taken until ... five (5) days notice of the date of 
the hearing is mailed or delivered to th attorney of record . . . or to the 
party in default if he is unrepresented ...." Similar language is found in the 
current version of Rule 10 fund at 12 O.S.Supp. 2014 (Rule 10, amended by order 
of the Supreme Court, 2013 OK 68, eff. Aug. 1, 2013). 
5 Husband's appellate reply brief contains a statement by 
counsel that husband has not remarried, and an assertion that common-law 
marriage is not recognized in the state where husband resides. The brief does 
not cite the trial court record in support of the statement. 
6 12 O.S.2011 § 2005.2, states in part: "Every party to 
any civil proceeding in the district courts shall file an entry of appearance by 
counsel or personally as an unrepresented party...." Further, this appearance 
requires an "address of record" be provided for service of notice. Id. § 
2005.2(D). 
7 Pierce v. Pierce, 2001 OK 97, ¶ 23, 39 P.3d 791, 800, citing Harmon v. Harmon, 
1997 OK 91, 943 P.2d 599. 
8 Pierce v. Pierce, 2001 OK 97, ¶ 23, 39 P.3d at 800. 
9 See, e.g., Brian Bix, Bargaining in 
the Shadow of Love: The Enforcement of Premarital Agreements and How We Think 
about Marriage, 40 Wm. & Mary L.Rev. 145, 164-165 (1998) (" . . . 
no-fault divorce has given the parties to a marriage substantial power to end 
the legal relationship if they so choose, to the point that in many states the 
current rules, as applied, give each spouse more or less a right to divorce upon 
demand."). 
10 Divorce is a statutory proceeding. McDonald v. 
Wrigley, 1994 OK 
25, 870 P.2d 
777, 779. One modern view of marital status is that it is a fundamental and 
personal associational activity that receives constitutional protection for the 
individual's efforts when utilizing a governmental entity for either 
establishing or dissolving the status-based relationship. See, 
e.g., U. S. v. Kras, 409 U.S. 434, 444-445, 93 S.Ct. 631, 
34 L.Ed.2d 626 (1973) ("The denial of access to the judicial forum in Boddie 
[Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)] 
touched directly, as has been noted, on the marital relationship and on the 
associational interests that surround the establishment and dissolution of that 
relationship. On many occasions we have recognized the fundamental importance of 
these interests under our Constitution. . . The Boddie appellants' inability to 
dissolve their marriages seriously impaired their freedom to pursue other 
protected associational activities."); Bishop v. Smith, 760 F.3d 1070, 
1080 (10th Cir. 2014) (recognizing a "fundamental right 
to marry"). Of course, a state may possess interests that may constitutionally 
place a burden on an individual's exercise of a right to marry or divorce. 
See, e.g., Sosna v. Iowa, 419 U.S. 
393, 
406-409, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (Iowa's statutory residency 
requirement for seeking a divorce did not violate the Due process Clause of the 
Fourteenth Amendment). 
11 Powers v. District Court of Tulsa County, 
2009 OK 91, n. 46, 227 P.3d 1060, 1075 ("In the absence of in 
personam jurisdiction over one spouse an ex parte divisible divorce 
decree may change the marital status of appearing and non-appearing spouses, but 
a divisible divorce is ineffectual to alter economic interests and certain other 
legal interests of the spouses."). 
12 Of course, equitable defenses are recognized in 
matrimonial litigation. Merritt v. Merritt, 2003 OK 68, ¶ 13, 73 P.3d 878, 883. However, equity must follow the law 
and a legal requirement may not be abridged "unless there are equitable 
considerations of a compelling nature." Id. Merritt, at ¶ 13, 
citing Hedges v. Hedges, 2002 OK 92, ¶ 8, 66 P.3d 364, 370. 
13 This Court, as an appellate tribunal, does not make 
first-instance rulings. Tucker v. Cochran Firm-Criminal Defense Birmingham, 
L.L.C., 2014 OK 
112, n. 52, 341 P.3d 673, 686.

Citationizer© Summary of Documents Citing This Document


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Citationizer: Table of Authority


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Name
Level


Oklahoma Supreme Court Cases
 CiteNameLevel
 2000 OK 78, 13 P.3d 480, 71 OBJ        2590, FERGUSON ENTERPRISES, INC. v. H. WEBB ENTERPRISES, INC.Discussed at Length
 1994 OK 25, 870 P.2d 777, 65 OBJ        800, McDonald v. WrigleyDiscussed
 2001 OK 97, 39 P.3d 791, 72 OBJ        3408, PIERCE v. PIERCEDiscussed at Length
 1935 OK 1086, 51 P.2d 296, 174 Okla. 525, RAND v. NASHDiscussed
 1957 OK 334, 320 P.2d 1114, HINES v. WINTERSDiscussed
 1959 OK 174, 346 P.2d 335, PORTER v. OKLAHOMA BACONE COLLEGE TRUSTDiscussed
 1964 OK 92, 391 P.2d 789, HAIR v. WILSONDiscussed
 2002 OK 31, 46 P.3d 698, JONES, GIVENS, GOTCHER & BOGAN, P.C. v. BERGERDiscussed
 2002 OK 92, 66 P.3d 364, HEDGES v. HEDGESDiscussed
 2003 OK 52, 77 P.3d 576, BARBER v. BARBERDiscussed
 2003 OK 68, 73 P.3d 878, MERRITT v. MERRITTDiscussed
 2005 OK 77, 124 P.3d 227, PHILLIPS v. HEDGESDiscussed
 2006 OK 42, 142 P.3d 390, MCCLURE v. CONOCOPHILLIPS COMPANYDiscussed
 2008 OK 29, 198 P.3d 877, BIERMAN v. ARAMARK REFRESHMENT SERVICES, INC.Discussed
 2009 OK 91, 227 P.3d 1060, POWERS v. DISTRICT COURT OF TULSA COUNTYDiscussed
 2011 OK 82, 267 P.3d 106, DEPT. OF SECURITIES ex rel. FAUGHT v. WILCOXDiscussed
 2011 OK 84, 264 P.3d 1197, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MOTHERSHEDDiscussed
 2012 OK 61, OKLAHOMA RULES FOR E-FILING IN SELECTED PILOT COURTSCited
 2013 OK 24, 301 P.3d 407, W.R. ALLISON ENTERPRISES, INC. v. COMPSOURCE OKLAHOMADiscussed
 2013 OK 68, IN RE AMENDMENTS TO OKLAHOMA SUPREME COURT RULESCited
 1980 OK 39, 609 P.2d 763, ABC Drilling Co., Inc. v. Hughes GroupDiscussed at Length
 2014 OK 112, TUCKER v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C.Cited
 1997 OK 91, 943 P.2d 599, 68 OBJ        2458, HARMON v. HARMONDiscussed
 1982 OK 35, 645 P.2d 471, Knell v. BurnesDiscussed
 1982 OK 84, 649 P.2d 521, Bovasso v. SampleDiscussed
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 2005.2, Entry of Appearance, Out-of-State Counsel, Address of Record and WithdrawalDiscussed
 12 O.S. 651, New Trial - Definition - Causes forCited
 12 O.S. 1038, Proceedings to Vacate or Modify a Judgment, Decree or OrderCited
 12 O.S. 2004, 12 O.S. 2004, ProcessCited













