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I I I I I I I I I I I I I I I I I I I

INDEX

ARGUMENT AND AUTHORITIES

PROPOSITION I I

APPELLANT'S PETITION IN ERROR WAS NOT TIMELY FILED AS TO THE DIVORCE DECREE, AND THE APPEAL MUST BE DISMISSED

STATUTES AND COURT RULES:

Oklahoma Supreme Court Rule 1.6( c )(I)

12 O.S. §696.3

12 O.S. §990.2(A)

12 O.S. §1031.1 (B)

PROPOSITION II

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1

I

1-2

4

APPELLANT IS A SERIAL ABUSER OF RULE 15, MOTIONS TO RECONSIDER, AND THE JUDICIAL PROCESS IN GENERAL, AND WHOLLY FAILED TO COMPLY WITH RULE 15 IN THE PRESENT CASE

CASES:

State ex rel. Oklahoma Bar Association v. 2013 OK 22, 915, 10-11, 299 P.3d 488

Ward v.Ward, 1995 OK CN APP 51,895 P.2d 749,751


Rule 15, Rules for District Courts of Oklahoma

PROPOSITION III

THE TRIAL COURT DID NOT ERR IN DIVIDING ASSETS

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4-5

8

4,6, 7,8,9

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CASES:

Boatman v. Boatman, IO 2017 OK 27, 'l[ 16,404 P.3d 822,828.

In re Wise, 10 346 F.3d 1239, 1242 (10th Cir. 2003).

PROPOSITION IV 1 I

THE TRIAL COURT DID NOT ERR IN FAILING TO GRANT A CONTINUANCE OR IN DISALLOWING WITNESSES AND EXHIBITS AS A RESULT OF FAILURE TO COMPLY WITH THE SCHEDULING ORDER

CASES:

Hull v. Hull, 2000 OK CIV APP 88, ~[ 4, 11 P.3d 222, 224

In re Estate of Bleeker, 2007 OK 68, 'l[ 25, 168 P.3d 774, 783

Short v. Jones, 1980 OK 87, 613 P.2d 452, 457

PROPOSITION V

THE TRIAL COURT DID NOT ERR IN GRANTING ATTORNEY FEES TO APPELLEE

CASES:

Irwin v. SWO Acquisition Corp., 1992 OK CIV APP 48,830 P.2d 587,589

ST A TUTES AND COURT RULES:

Rule 4(e), Rules for District Courts of Oklahoma

PROPOSITION VI

THE TRIAL COURT DID NOT ERR IN FAILING TO MODIFY THE CHILD SUPPORT CALCULATION

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11-12

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I 2-13

14

15

14

15

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, I

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CASES:

Johnson v. Johnson, 1983 OK 117, 674 P.2d 539, 543

PROPOSITION VII

THE TRIAL COURT DID NOT ERR IN FAILING TO HEAR APPELLANT'S MOTION REGARDING THE VPO

ST A TUTES AND COURT RULES:

12 O.S. §2011.1

22 O.S. §60.2(C)(2)

PROPOSITION VIII

THE TRIAL COURT DID NOT ERR IN DENYING A DEPOSITION OF APPELLEE


12 O.S. §3226

CONCLUSION

CERTIFICATE OF MAILING

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15

16

16

16

17

17

17-18

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I


IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

In Re: the Marriage of ) )

, ) Supreme Court Case No. )

Petitioner/Appellee, ) Oklahoma County Case No.: )

, ) )

Respondent/ Appellant. )

ANSWER BRIEF OF APPELLEE

ARGUMENT AND AUTHORITIES

PROPOSITION I

APPELLANT'S PETITION IN ERROR WAS NOT TIMELY FILED AS TO THE DIVORCE DECREE, AND THE APPEAL MUST BE DISMISSED

As set forth in Appellee' s Motion to Dismiss, previously filed and deferred to the decisional

stage of this appeal, Oklahoma Supreme Court Rule l.6(c)(l) requires that this appeal be dismissed

as untimely filed. In the case below, the trial court issued a Memorandum Order on September 2,

2016 containing its rulings on this divorce matter after a contested trial. Appellant filed a Motion

to Vacate or for New Trial on September 12, 2016. Subsequently, the trial court entered a final

decree of divorce which was filed on October 14, 2016, which decree was an appealable order

pursuant to the provisions of 12 O.S. §696.3.

12 O.S. §1031.1 (BJ provides as follows, to-wit:

On motion of a party made not later than thirty (30) days after a judgment, decree, or appealable order prepared in conformance with Section 696.3 of this title has been filed with the court clerk, the court may correct, open, modify, or vacate the judgment, decree, or appealable order. If the moving party did not prepare the judgment, decree, or appcalablc order, and Section 696.2 of this title required a

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copy of the judgment, decree, or appcalable order lo be mailed to the moving party, and the coun records do not reflect the mailing of a copy of the judgment, decree, or appeal able order to the moving party within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the motion to correct, open, modify, or vacate the judgment, decree, or appealable order may be filed no later than thirty (30) days after the earliest date on which the court records show that a copy of the judgment, decree, or appcalable order was mailed to the moving party. The moving pany shall give notice to all affected parties. A motion to correct, open, modify, or vacate a judgment or decree filed after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.

12 O.S. §990.2(A) provides, in pertinent part, as follows:

When a post-trial motion for a new trial, for judgment notwithstanding the verdict, or to correct, open, modify, vacate or reconsider a judgment, decree or final order, other than a motion only involving costs or attorney fees, is filed within ten (10) days after the judgment, decree or final order is filed with the court clerk, an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk. The unsuccessful party may then appeal from the order disposing of the motion within thirty (30) days after the date such order was filed. If the decision on the motion was against the moving party, the moving party may appeal from the judgment, decree or final order, from the ruling on the motion, or from both, in one appeal, within thirty (30) days after the filing of the order disposing of the motion. Successive appeals from the original judgment, decree or final order and the order disposing of the motion shall not be allowed.

As Appellant filed a Motion to Vacate/for New Trial after the announcement of the decision

on all issues, but prior to the entry of an appealable order, his appeal time as to the merits of the

divorce decree did not begin to run until the filing of an order disposing of that Motion. The trial

court disposed of Appellant's Motion to Vacate/for New Trial via an appealable order, as defined

in Section 696.3, filed October 20, 2016. At that point, pursuant to the authorities cited above, he

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had 30 days - or until November 21, 2016, due to the 30'" day falling on a Saturday- within which

to file a merits appeal to this Court. His appeal was not filed until almost seven months later, on

June 19, 2017, clearly outside the time allowed.

Although Appellant filed several subsequent pleadings below in the nature of motions to

reconsider/motions for new trial, in an apparent attempt to continue to extend his appeal time, all of

those pleadings were filed more than ten days after filing of the decree and therefore did not extend

Appellant's appeal time from the decree, pursuant to the above-cited authorities.

Appellant contends that, since he filed a "Motion to Set Aside Decree" on October 31, 2016,

that somehow preserved his appeal time as to the Decree. This is not the case, and there is no

authority that would allow what Appellant has attempted here - the pyramiding of multiple motions

in the nature of motions to reconsider/motions for new trial that would somehow reach back to

preserve the appeal time on the original decree in this case.

Additionally, the October 31, 2016 Motion was ruled upon by the trial court by appealable

order filed November 15, 2016. While Appellant filed a Motion to Reconsider that ruling, it was

not filed until December 15, 2016, more than 10 days afterthe entry of the order. As such, that filing

did not preserve the appeal time from the November 15, 2016 ruling. The only ruling that was

timely appealed was the ruling denying the December 15,2016 Motion, and the only issues properly

before this Court deal with the November 15, 2016 ruling, which dealt solely with the Rule 15 issue.

No appeal was timely taken from the Decree in this case, and the only issue properly before this

Court is the Rule 15 issue ruled upon by the trial court on November 15, 2016. In all other respects,

this Appeal is untimely and must be dismissed.

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PROPOSITION II

APPELLANT IS A SERIAL ABUSER OF RULE 15, MOTIONS TO RECONSIDER, AND THE JUDICIAL PROCESS IN GENERAL, AND WHOLLY FAILED TO COMPLY

WITH RULE 15 IN THE PRESENT CASE

Appellant has a history of improper conduct, abuse of the Rule 15 process, and the serial

filing of meritless motions to reconsider. He also has an ongoing history of filing meritless suits

against judges and opposing counsel. He was suspended from the practice of law in 2013 for one

year by this Court after resigning from the bar of the U.S. District Court for the Western District of

Oklahoma pending disciplinary proceedings. In State ex rel. Oklahoma Bar Association v. ,

2013 OK 22, 'll5, 10-11, 299 P.3d 488, its opinion imposing that suspension, this Court stated:

The Western District charges included allegations of witness intimidation, missing deadlines, and altering court documents. In December 2011, the Honorable Vicki Miles-LaGrange sanctioned Respondent $ I ,000 for discovery abuse: failing to appear at deposition hearings, which is a violation of Oklahoma Rules of Professional Conduct (ORPC) Rules 1.3 and 8.4(d), and Rule 1.3, RGDPI . The following month, the Honorable Stephen Friot sent a complaint of professional misconduct regarding the Respondent to Judge Miles-LaGrange. The complaint included emails sent by the Respondent to witnesses in which he threatened to file lawsuits against them for fraud and breach of contract if they testified. These actions constitute violations of Rules 3.4(a), 3.4(f), and 8.4(d) OPRC, as well as Rule 1.3, RGDP2. Also in January 2012, the Honorable Lee West sent Judge Miles-LaGrange copies of orders in three separate cases handled by Respondent. Judge West described all three as demonstrating a pattern of missing deadlines and seeking reconsideration that is typical in the Respondent's cases. These actions constitute violations of OPRC Rules 1.1, 1.3, 3.23 , 8.4(d), and Rule 1.3, RGDP. The Honorable Tim Leonard also sent a memo to Judge Miles-LaGrange regarding the Respondent. Judge Leonard had sanctioned Respondent $20,000 for altering a Final Joint Pretrial Report and pulling opposing counsel's electronic signature on it without his consent. These actions violated OPRC Rules 3.3, 3.4, 8.4(c), 8.4 (d), and Rule 1.3, RGDP4 . These charges and Respondent's resignation led to his one-year federal suspension.

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I

... Mr. has chosen to be an attorney. This profession demands a high level of honesty and integrity, so much so that it is among the first commitments made when attorneys take their oath.

Respondent's actions indicate a disturbing pattern of behavior with a key element being a lack of forthrightness.

The failings noted by this Com1 in suspending Appellant have not improved since he returned

to the practice of law. His lack of forthrightness, if anything, has become more pronounced.

Appellant has a habit of filing suit against the attorneys, parties, and judges involved in cases

against him. After being sued by RCB Bank for foreclosure and fraud (Oklahoma County case no.

CJ-2015-192), he initiated (but did not serve) an action individually against several people involved

with that case, including the president and a former employee of the bank, counsel for the bank in

the foreclosure case, and others, relating primarily to the subject matter of the foreclosure case.

He initiated a similarly meritless case against several Oklahoma County Judges, including

the Honorable Aletia Timmons, the Honorable Barbara Swinton and the Honorable Thomas Prince

in Oklahoma County Case number CJ-2016-1923. This case was dismissed on the grounds of

absolute judicial immunity, resulting in Appellant commencing a series of filings seeking to undo

the dismissal on frivolous grounds, to disqualify the Attorney General's office, and the like.

Appellant then filed suit against the Oklahoma Bar Association, its first assistant general

counsel, its chief investigator, and another investigator (Oklahoma County Case No.CJ-2017-1192),

claiming intentional torts for pursuing ethics complaints against Appellant, as well as seeking to

enjoin the Bar Association from proceeding against him. He seeks in that action to relitigate fact

issues surrounding his prior suspension by this Court in 2013.

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'I

Most recently, Appellant has filed, but has not served, litigation in Oklahoma County (Case

No. CJ-2018-373) against OBA general counsel personnel and investigators, Oklahoma County

Special Judge Lisa Hammond, as well as Appellee's counsel in this case and the head of the OBA

Professional Responsibility Tribunal prosecuting the grievances against him. This frivolous action

purports to seek the source of "leaks" as to the pending disciplinary proceeding against Appellant.

That disciplinary proceeding is currently open to viewing by the public on OSCN.

Appellant is currently the subject of a disciplinary action by the Oklahoma Bar Association

involving ethical complaints for, among other things, misuse/abuse of the Rule 15 judicial recusal

process and frivolous litigation against judges. This is no surprise, as he abused that process in the

present case by frivolously seeking recusal of the trial court after the trial and filing a recusal motion

the day the Decree of Divorce was signed. He also filed a frivolous original jurisdiction proceeding

before this Court (Case No. 115766) in which he failed to appear for presentation to a referee and

was sanctioned by this Court.

Appellant has endeavored to utilize the Rule 15 recusal motion as an offensive weapon,

seeking recusal of judges no less than 13 times in various cases over the past several years, mostly

on the eve of adverse rulings. The cases in which Appellant engaged in these abuses include the

present case, Liebel v. , et al., Oklahoma County case number CJ-2009-11652, Eaves v.

Matthews, et al., Canadian County case number CJ-2014-653, Turner v. Bray, et al., Canadian

County Case No. CJ-2015-272, In re: Estate of Campbell, Oklahoma County Case No. PB-2013-500,

RCB Bank v. , Oklahoma County Case No. CJ-2015-192, and Saheb v. , Oklahoma

County Case No. CJ-2015-472. It is important for this Court to be aware of Appellant's history in

considering this appeal.

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'I

In the present appeal, the only issue properly before this Court is the trial court's refusal to recuse

itself pursuant to Rule 15 of the Rules for District Couns of Oklahoma. Rule I 5 provides, in pertinent

part, as follows:

a. Before filing any motion to disqualify a judge, an in camera request shall first be made to the judge to disqualify or to transfer the cause to another judge. If such request is not satisfactorily resolved, not less than ten ( 10) days before the case is set for trial a motion to disqualify a judge or to transfer a cause to another judge may be filed and a copy delivered to the judge.

b. Any interested party who deems himself aggrieved by the refusal of a judge to grant a motion to disqualify or transfer a cause to another judge may re-present his motion to the Chief Judge of the county in which the cause is pending or, if the disqualification of a Chief Judge is sought, to the Presiding Judge of the administrative district by filing in the case within five (5) days from the date of said refusal a written request for re-hearing. A copy of the request shall be mailed or delivered to the ChiefJudge or Presiding Judge, to the adverse party and to the judge who entered the original order. If the hearing before the second judge results in an order adverse to the movant, he shall be granted not more than five (5) days to institute a proceeding in the Supreme Court or the Court of Criminal Appeals for a writ of mandamus. Neither the Supreme Court nor the Court of Criminal Appeals will entertain an original proceeding to disqualify a judge or to direct a judge to transfer a cause to another judge unless it is shown that the relief sought was previously denied by the judge to whom the matter was re-presented in accordance with this rule. An order favorable to the moving party may not be reviewed by appeal or other method.

Appellant's initial request to the trial court to recuse himself was made on September 20,

2016, when he filed a Notice of Rule I 5 hearing, which was to be held on September 28, 2016. This

initial request was made some three weeks after the trial on the merits. This was obviously not more

than ten days before trial as required by Rule 15. The trial court denied Appellant's request to recuse

on September 28, 2016. Given that the initial request to recuse was not made until weeks after trial

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'I I I I I I I

on the merits, Rule 15 could not have been properly invoked in any case, and Appellant's quest to

invoke it was doomed from the start.

Additionally, Rule 15 requires any original jurisdiction proceeding lo be brought within five

days of an adverse ruling by a second judge on a motion to recuse. Although Appellant did bring

an original jurisdiction proceeding (Case No. 115766 - which resulted in sanctions against him) five

days after the February 9, 2017 order from Judge Henderson denying Appellant's third (or fourth -

it is difficult to keep track) motion to recuse, Judge Henderson had issued an order on January 11,

2017, denying a prior version of the motion to recuse. Appellant brought no original jurisdiction

proceeding within five days of that order.

Appellant's Rule 15 quest is a microcosm of his usual litigation "strategy" and his ill-fated

appeal in this case. He tried to do with the Rule 15 proceeding what he has tried to do with his

untimely appeal. Appellant cannot keep his remedies alive by repeatedly filing what amounts to the

same motion over and over again, and only seeking appellate relief after the last one.

Appellant failed to comply with Rule 15 below in a number of ways, not least of which was

his failure to commence any proceedings until weeks after a trial on the merits, when Rule 15

requires any motion to be filed at least 10 days before trial. A failure to comply with the

requirements of Ruic 15 results in a waiver of any complaint on appeal. Ward v. Ward, 1995 OK CIV

APP 51,895 P.2d 749, 751.

Moreover, Appellant already prosecuted an original jurisdiction proceeding seeking the

recusal of the trial court, in which proceeding he failed even to appear for presentation to the referee.

This Court denied his quest to disqualify the trial court and sanctioned him. There is nothing more

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for this Court to consider on appeal, given that it has already considered and denied Appellant's

guest for disqualification in his prior original jurisdiction proceeding.

Further, to the extent that Appellant seeks to invalidate the Decree entered below because of

the Rule 15 proceeding, the trial court had already pronounced its ruling prior to any Rule 15 issues

being raised. The entry of the Decree was simply an administrative act memorializing what had

already occurred prior to Rule 15 being raised. This is simply another example of Appellant

improperly invoking Rule 15 after the fact to try to avoid an already-pronounced adverse ruling.

Appellant failed to properly or timely invoke the Rule 15 procedure below. His complaint

that the trial court did not suspend proceedings until the Rule 15 process was complete rings hollow.

Appellant's clear objective, as has been his practice, was to attempt to avoid the formal entry of a

judgment unfavorable to him by attempting to frivolously invoke the Rule 15 process. The trial

court properly ruled that the process had not been timely or properly invoked and properly refused

to stay proceedings. Appellant's argument that the trial court was "biased" against him because of

non-existent conversations with another judge are without any factual basis, and the only alleged

"bias" Appellant points to in the record is from months after the trial. There is no legal or factual

basis for Appellant's argument that the trial court should have been disqualified, or that any rulings

below must be vacated. All rulings below must be upheld.

PROPOSITION III

THE TRIAL COURT DID NOT ERR IN DIVIDING ASSETS

Although none of the remaining issues argued by Appellant in his brief are properly before

this Court on appeal, as shown above, Appellee will still address those issues. First, Appellant

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contends that the trial cou11 was without power to issue orders related to the distribution of assets

due to Appellant's pending bankruptcy case. This is incorrect.

Appellee obtained an order from the bankruptcy court on August 24, 2015, lifting the

automatic stay in bankruptcy and explicitly allowing her to continue this divorce action against

Appellant. Appellant's debts were discharged shortly thereafter, although the case remained

pending. According to the case cited by Appellant, property rights in a situation like this are

determined under state Jaw, not by the bankruptcy court. In re Wise, 346 F.3d 1239, 1242 (10th Cir.

2003). As such, Appellant's argument that the trial court was somehow without jurisdiction to

proceed to divide the marital assets is completely without merit.

As to the issue of ALB Holdings, LLC, the evidence at trial was that this LLC owned a

residence worth approximately $81,000.00. Appellant testified that there was a person who had a

life estate in the property and possibly taxes owed on the property, but that it did not have a mortgage

against it. Tr., 8/31/16, pages 41-45. Underthe circumstances, the trial court assigned a reasonable,

and probably low, value to this property for purposes of dividing the marital estate. As the trial

court's decision on this issue was supported by evidence, and was not "clearly erroneous" or "against

reason and evidence." Boatman v. Boatman, 2017 OK 27, 'l[ 16,404 P.3d 822, 828. The trial court's

ruling as to ALB Holdings, LLC must be upheld.

As to the artwork, the same applies. While Appellant clearly disagrees with the trial court's

valuation of the artwork, it was supported by the evidence adduced at trial. The numbers that

Appellant discusses came from his testimony, not Appellee's. Appellant can hardly be heard to

complain that the trial court took him at his word as to the value of this artwork. Moreover,

Appellec testified at trial that there was more artwork than what was the subject of the $25,000.00

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loan, including artwork that was in the marital home shortly before trial that she had never seen

before. The trial court did not abuse its discretion in making its finding as to the artwork. Tr.,

8/31/16, pages 91-93.

As to the marital home, the evidence adduced at trial from Appellant was that his liability

on the mortgage debt had been discharged in his bankruptcy. Appellant had always paid the

mortgage and Appellee did not contribute to it. Appellant's bankruptcy filings indicated equity in

the marital residence of approximately $80,000.00. Meanwhile, Appellee was subject to a deficiency

judgment as a result of Appellant's failure to pay the mortgage and the resulting foreclosure. Tr.,

8/31/16, pages 12, 37, 40-41, 47.

Appellant's argument thatthe trialcourtcould not make any ruling with respect to the marital

residence is nonsensical. Appellant had possession of the marital residence and had wasted the

equity therein by failing to pay the mortgage, resulting in the foreclosure. The trial court's decision

was not against the weight of the evidence, was not an abuse of discretion, and must be upheld.

PROPOSITION IV

THE TRIAL COURT DID NOT ERR IN FAILING TO GRANT A CONTINUANCE OR IN DISALLOWING WITNESSES AND EXHIBITS AS A RESULT OF FAILURE TO

COMPLY WITH THE SCHEDULING ORDER

Appellant contends that the trial court erred in refusing to grant a joint request for a

continuance. Appellant does not even argue that the trial court abused its discretion, which is the

standard of review. Appellant cites to no authority which would suggest that a trial court is obligated

to grant a continuance because the parties think they might be able to settle.

As stated in Hull v. Hull, 2000 OK CIY APP 88, 'l[ 4, 11 P.3d 222, 224:

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-

The trial court in the instant case insisted on compliance with its pre-trial Resolution Conference Order. This was within the court's discretion. Failure to comply with that Resolution Conference Order resulted in unlisted witnesses being precluded from testifying. That decision and the decision to deny a request for continuance were also discretionary. Those decisions, although certainly prejudicial to mother's case, were brought about purely by the mother's attorney's failure to prepare and by his general lack of due diligence. It has been held that, "A continuance based on the absence of a witness or of evidence expected to be given by him is properly refused where the applicant fails to use due diligence to procure the witness or obtain his testimony by deposition." Estate of Katschor, 1975 OK 159, 543 P.2d 560, 562. The trial court has every right to expect its orders to be complied with absent a timely and justified request for relief from, exception to, or modification of the order. In this case, there is no evidence or argument excusing the total lack of compliance with a valid and unambiguous pre-trial order. The record reflects that the reason cited for the continuance asked for was that the defendant thought there was a chance for reconciliation. No abuse of discretion is shown or found.

In the present case, both parties were properly denied a continuance, as both parties had failed

to comply with the trial court's scheduling order when they appeared for the pretrial conference. No

abuse of discretion exists here.

Similarly, the trial court did not err in prohibiting witnesses other than the parties or exhibits

for failure to comply with the trial court's scheduling order and exchange lists of those items as

required. with respect to the prohibited from presenting witnesses or exhibits for failure to comply

with the trial court's scheduling order.

As stated in Short v. Jones, 1980 OK 87,613 P.2d 452,457, where the court refused to allow

testimony from a witness not properly identified prior to trial:

The defendant raises as reversible error the trial court's exclusion of testimony from one Bill Garrett, the reason disclosed in the transcript being his name was not furnished to the plaintiff prior to the date of trial. The defendant contends the listing of that witness as "ground

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, I

man for Uselton" on the pretrial order is sufficient notice to the opposing pa11y despite that order stating that pany's name was unknown at pretrial. Prior to the trial the plaintiff objected to the testimony on the ground that the identity of the individual was not disclosed prior to trial and that objection was sustained. Defendant now proposes failure to disclose the identity here is not sufficient justification for excluding competent relevant testimony under Rule 5(c)(3) of the rules of the District Court of Oklahoma. The identity of the questioned individual was within the knowledge of the defendants . . . Under Rule 5 of the District Courts, the court has broad authority to enforce its orders. The court, acting under this authority, upon this record cannot be held to have abused its discretionary powers in refusing to permit the testimony shown by the offer of proof to be material, even to the point of being the vehicle for introduction of what could be characterized as defendants' most important witness. Such testimony would substantially affect the conduct of the trial and the refusal to allow such a drastic change of position at the very outset of a jury trial cannot be considered an abuse of discretion in the light of the surrounding circumstances summarized here. The District Court has wide discretionary powers to enforce its pretrial orders, and the pre-trial rule, Rule S(c)(3) of the Rules of the District Court, is designed to forestall the very surprise maneuver which occurred here. (Emphasis added.)

Here, the trial court was faced with the same situation as the court in Short. Neither party

had exchanged lists of witnesses and exhibits as required by the trial cou11' s scheduling order. The

trial cou11, in the exercise of its wide discretion in enforcing its pretrial orders, refused to allow either

pal1y to call third-party witnesses or present exhibits as a result. It was wholly within its power to

do so, and there is no basis for reversal on that basis.

Appellant's citation to In re Estate of Bleeker, 2007 OK 68, 'I[ 25, 168 P.3d 774, 783, is

wholly inapposite. That case involved whether a beneficiary of an estate could bring an action on

behalf of the estate that the personal representative refused to bring. It did not involve a situation

such as the present case and is of no assistance in determining the issues here.

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PROPOSITION V

THE TRIAL COURT DID NOT ERR IN GRANTING ATTORNEY FEES TO APPELLEE

Appellee initially filed her Motion for Attorney Fees on November I 0, 2016. Due to various

frivolous filings by Appellant, the hearing was continued several times, and the Motion was not

heard until May 19, 2017. In the meantime, Appellee amended her Motion on January IO, 2017 and

April 26, 2017. Despite the fact that more than six months passed from the time the Motion was

originally filed until it was heard, Appellant never filed a substantive response to the Motion.

Pursuant to Rule 4( e) of the Rules for District Courts of Oklahoma, failure to file a response

in opposition to a motion within 15 days may result in the motion being deemed confessed. Despite

the fact that Appellant filed no response for six months, the trial court nevertheless did not deem the

Motion confessed, but considered it on its merits. The trial court stated at the hearing that he had

spent the "lion's share" of the week and a half since he had taken over the docket reviewing this case

and that he "wanted to be prepared and certainly was prepared and am prepared to issue a ruling"

on the attorney fee motion. It was apparent to the trial court, as it wou Id be to any objective

observer, that Appellant had unnecessarily complicated and delayed the proceedings and engaged

in vexatious tactics. This was the basis for the trial court's award of attorney fees. Tr., 5/19/17,

pages 24-26.

Appellee takes no issue with Appellant's recitation of the law regarding awards of attorney

fees in divorce litigation. However, it is clear that the trial court considered the necessary factors

in arriving at its award. Moreover, Appellant never filed a substantive objection below, despite

having more than six months to do so. In failing to object below, Appellant failed to preserve any

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error for this Court to review, in any event. Irwin v. SWO Acquisition Corp., 1992 OK CIV APP

48, 830 P.2d 587, 589. The trial court's award of attorney fees must be upheld.

PROPOSITION VI

THE TRIAL COURT DID NOT ERR IN FAILING TO MODIFY THE CHILD SUPPORT CALCULATION

As pointed out above, the trial court was within its power to enforce its pretrial orders in

refusing to allow the parties to present any documentary evidence. Appellant points this Court to

nowhere in the record where he offered the Court any evidence on this issue via testimony or

orherwise. He cannot now be heard to complain that the trial court failed to grant him relief when

he offered no evidence at trial in support of his Motion. Moreover, fhe trial court's ruling on

modification of temporary child support is necessarily subsumed within the final Decree, rendering

the issue of the temporary support order moot in any event. Johnson v. Johnson, 1983 OK 117,674

P.2d 539, 543.

Appellant does not explain to this Court how the trial court could have abused its discretion

when Appellant himself offered no evidence to support his position. Appellant could have testified

as to this issue - he chose not to do so. That is his failing, not the trial court's. Trial was the time

to present whatever evidence Appellant wished to present. Despite Appellant's failure to present

evidence at trial, the Decree allowed for the proper amount for insurance to be included in the child

support calculations if provided by Appellant after trial - he failed to provide that information.

Decree. This highlights the frivolity of Appellant's argument on this issue. The fact that the parties

were precluded from presenting documentary evidence did not prevent Appellant from offering

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testimony on the issue, or from providing the information after the fact, all of which he failed to do.

The trial court's ruling on this issue must be upheld.

PROPOSITION VII

THE TRIAL COURT DID NOT ERR IN FAILING TO HEAR APPELLANT'S MOTION REGARDING THE VPO

Appellant argues that 12 O.S. §2011.1 requires a hearing. The statute requires no such thing.

Section 2011.1 provides as follows:

In any action not arising out of contract, if requested the court shall, upon ruling on a motion to dismiss an action or a motion for summary judgment or subsequent to adjudication on the merits, determine whether a claim or defense asserted in the action by a nonprevailing party was frivolous. As used in this section, "frivolous" means the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law. Upon so finding, the court shall enter an order requiring such nonprevailing party to reimburse the prevailing party for reasonable costs, including attorney fees, incurred with respect to such claim or defense. In addition, the court may impose any sanction authorized by Section 2011 of this title.

The statute clearly does not require a hearing. The trial court ruled on Appellant's Motion,

and that was all that was required. Moreover, the statute did not apply in any event. The trial court

did not rule on a motion to dismiss or motion for summary judgment, and Appellant's Motion was

filed prior to adjudication on the merits. Under no circumstance could Appellee be seen as the non

prevailing party in this action.

22 O.S. §60.2(C)(2) provides specifically for the award of attorney fees and costs if a

protective order action is found to be frivolous. Appellant made no request at any time for a ruling

under this statute, which is the specific and properly applicable statute here. Appellant failed to seek

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any relief in this regard for almost a year after the VPO issue was heard. The trial court did not err

in denying this Motion.

PROPOSITION VIII

THE TRIAL COURT DID NOT ERR IN DENYING A DEPOSITION OF APPELLEE

Appellant complains of the trial court's refusal to allow him to depose Appellee. He

conveniently leaves out the fact that he subpoenaed Appellant's counsel and Appellant for attorney

client privileged materials and wanted to depose Appellee regarding communications with her

counsel. Appellant filed two Motions to Quash and for Protective Order, to which Appellee never

responded. The trial court entered the requested protective orders. Motion to Quash Subpoena,

for Protective Order, and for Sanctions, 11/9/15; Second Motion to Quash Subpoena, for

Protective Order, and for Sanctions, 11/30/15; Court Minute, 12/18/15.

Appellant's argument that the trial court had no power to prevent him from deposing

Appellee is simply incorrect. Appellee sought and was granted protective orders pursuant to 12 O.S.

§3226. Appellant's sole purpose in trying to depose Appellee was to harass her and attempt to

inquire about attorney-client protected information. The trial court properly prevented Appellant

from doing so. There is no basis for reversal on this issue.

CONCLUSION

Appellant failed to timely file an appeal of the Decree in this case. The only matter that was

timely appealed was the order denying the last of his multiple requests to recuse Judge Haralson, the

first of which was filed after trial on the merits. This was a continuation of Appellant's long

standing practice of filing Rule IS motions on the eve of, or even after, adverse rulings in order to

allempt to improperly avoid such rulings. Appellant did not properly comply with Rule 15 below,

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and there are no legal or factual grounds for his appeal on that basis. This Court already ref used to

accept his original jurisdiction proceeding on the same issue and sanctioned him for filing it. No

other issues were timely appealed.

Even were this Court to consider the other issues advanced by Appellant, they are without

merit. Contrary to Appellant's unfounded contention, the reason judges kept recusing themselves

from this case is that they did not want to deal with his nonsense, and for this they cannot really be

blamed. Judge Haralson handled the case in a manner that was fair to both parties. There are no

legal or factual grounds for reversal of any of the trial court's rulings, and those rulings must be

upheld in their entirety.

WHEREFORE, for the reasons stated above, Appellee, prays this Court enter its

Order sustaining the denial of Appellant's Rule 15 Motion and dismissing the remainder of his

appeal as untimely or, in the alternative, affirming the trial court in all respects, together with such

other and further relief as the Court deems just and equitable.

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Respectfully submitted,

Chris H p r, Phillip P. Owens II, OBA# 15165 CHRIS HARPER, INC. Post Office Box 5888 Edmond, Oklahoma 73083-5888 ( 405) 359-0600 ( 405) 340- I 973 Facsimile Attorneys for Appellee


CERTIFICATE OF SERVICE

This is to certify that on the l day of April, 2018, a true and correct copy of the above and foregoing document was mailed, with postage prepaid thereon, to:

Barry Roberts Gregory C. Blackwell 320 I S. Berry Road Norman, OK 73072

Rachel Lawrence Mor 3037 N.W. 63'' Street, Suite 205 Oklahoma City, OK 73116 Auorneys for Appellant

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