642 P2D 243 - Lee v. Hester

OPALA, Justice:

¶1The issue here is whether contested matrimonial suits may be routinely and indiscriminately referred to a special judge for resolution of all issues.

¶2The divorce cases which gave rise to the proceeding before us were initially assigned to a special judge. When the assignment came under challenge based on the statutory limitation, in 20 O.S.Supp.1978 § 123 A,1 upon a special judge’s adjudicative authority, they were transferred out. The same special judge was then re-assigned to the cases as “referee”. He was ordered to hear the evidence and report all factual issues to one of the district judges. The parties objecting to the reference now seek a writ prohibiting the challenged special judge’s deployment qua referee in these contested domestic cases. The respondents urge that the challenged reference is authorized by 20 O.S.Supp.1978 § 123 B.2

¶3 *245We hold that although special judges may be used in contested matrimonial disputes as referees to aid the court with resolution of complex valuation or accounting issues, their routine and indiscriminate deployment for unrestricted reference of all issues in such disputes contravenes the clear command of 20 O.S.Supp.1978 § 123 A and the accepted equity practice under the statutes. It should be prohibited as an unauthorized use of judicial force.

¶4I.

¶5THE CHALLENGED ORDER OF REFERENCE IS IMPERMISSIBLY OVERBROAD

¶6Compulsory reference is not inappropriate as an aid to the judge in resolving — within the context of an equitable matrimonial dispute — complex issues of accounting or valuation.3 In the absence of a contrary command in our fundamental or statutory law, courts have the power to avail themselves of devices necessary to the efficient performance of their constitutionally-mandated duties.4

¶7Oklahoma has no cogent precedent inhibiting compulsory references of complex accounting or valuation issues in a matrimonial case. Allen v. Allen5— the authority invoked here to secure this court’s approval for a blanket per se condemnation of compulsory references in divorce cases — -is not to be regarded as a correct exposition of this state’s present-day jurisprudence.

¶8Allen was a divorce appeal decided on a confession of error. The vice of our pronouncement in that case lies in uncritically following a first-generation American legal encyclopedia’s statement of the applicable national doctrine. The encyclopedic text singled out divorce-case references as universally inappropriate and condemned. This overlooked, of course, the English chancery practice and its continued survival in many states in a form that is largely unrestricted by statute. Oklahoma is most surely among those states.6 Another prob*246lem with Allen today is that it was reached for decision some forty-five years before our district court came to be reconstituted as an omni-competent tribunal of first instance with “unlimited” cognizance.7 The current sweep of district court’s power no longer can be said to hinge on the presence of some specifically tailored legislative grant.

¶9The only Oklahoma case that cites Allen with approval is North v. Byrnes8 North —an action at law — has no precedential force on the precise point before us here. It can give the aberrational Allen doctrine neither strength nor support. Because reference of complex accounting or valuation issues tendered in an equitable domestic dispute is permissible and hence is a fit subject for compulsory imposition — and because our present-day district court is vested with unlimited equitable cognizance— Allen can no longer be regarded as an effective barrier to every form of nonconsen-sual reference in matrimonial litigation.

¶10Our conclusion is that the compulsory reference order under challenge here is imper-missibly overbroad because (a) it allows unrestricted reference of the whole case and (b) it is not predicated upon the presence in the case of complex issues of accounting or valuation.

¶11II.

¶12THE DISTRICT COURT PRACTICE OF MAKING ROUTINE AND INDISCRIMINATE REFERENCES TO SPECIAL JUDGES OF ALL ISSUES IN A DIVORCE CASE IS IMPERMISSIBLE

¶13Routine and indiscriminate use of special judges for unrestricted reference of contested matrimonial disputes contravenes both the clear command of § 123 A9 and the accepted equity practice under our statutes. Prohibition will lie to arrest unauthorized application or excessive use of judicial force. State v. Evans, Okl., 319 P.2d 1112, 1116 [1957]. The writ is accordingly granted; respondents are prohibited from assigning special judges to serve as referees in contested matrimonial disputes unless the spousal estate in suit and to be reached for division should consist of numerous items of property on which value must be placed, or present in the case are some other complex issues of accounting or valuation.10 Whenever these adjudicatory elements be found in a controversy, special judges may be used to assist the court in resolving the issues properly to be referred,

¶14Writ issued.

After WILLIAMS, J., had certified his disqualification, the Chief Justice designated Honorable LESTER REYNOLDS to sit by assignment as special justice in this case.IRWIN, C. J., BARNES, V. C. J., DOO-LIN and HARGRAVE, JJ., and REYNOLDS, Special Justice, concur.HODGES, LAVENDER and SIMMS, JJ., concur in result.

¶15. The terms of 20 O.S.Supp.1978 § 123 A provide in pertinent part: “Special judges may hear the following actions: … (7) Any uncontested matter at any stage, whether intermediate or final, in a probate, divorce, domestic relations, custody or support, guardianship, conservatorship, or determination of death proceeding, except that nonlawyer special judges may not hear such matter. … ”

¶16. The terms of 20 O.S.Supp.1978 § 123 B provide: “Special judges shall be authorized to serve as referee in any matter before the dis.-*245trict court and to serve as referee in cases on the juvenile docket with the approval of the judge regularly assigned to the juvenile docket and the chief judge of the district court.”

¶17. The terms of 12 O.S.1971 § 613 provide in pertinent part: “When the parties do not consent, the court may ... of its own motion, direct a reference in either of the following cases: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness to prove the account; in which case the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court ...” [emphasis ours].

¶18. Rand v. Nash, 174 Okl. 525, 51 P.2d 296, 297 [1935].

¶19. 85 Okl. 240, 205 P. 504 [1922].

¶20. Our statutory law appears to give recognition to the traditional use of “masters” in equity: (a) in restraint of trade proceedings, under 79 O.S.1971 § 23, the court is authorized to appoint a “master in chancery ... in its discretion, to receive evidence ... and to have findings of fact made thereon... ”; (b) under the marketable record title act, 16 O.S.1971 § 78(f), a title transaction is defined as any transaction affecting title to any interest in land, including inter alia, a referee’s or master in chancery’s deed and (c) in proceedings under the Oklahoma Consumer Protection Act, 15 O.S.Supp. 1980 § 756.1(C)4, the court may appoint “a master ... whenever it ... appear that the defendant ... is about to remove, conceal or dispose of property . . . ”,

¶21Other statutes indicating legislative sanction of reference practice are: Compulsory References : (1) In a suit to determine water rights, under 82 O.S.1971 § 29, “the court may appoint a referee or referees ... to take testimony and report upon the rights of the parties, as in other equity cases.” [emphasis supplied]. This section implicitly makes imposition of reference subject to judicial discretion. This section now stands repealed. Okl.Sess.Law 1972, c. 256 § 33. (2) 10 O.S.1971 § 1126 (juvenile process); (3) 12 O.S.1971 § 613 (accounting issues); (4) 12 O.S.1971 §§ 857, 858, 859, 861 (in aid of execution); (5) 12 O.S.1971 § 1460 (mandamus); (6) 18 O.S.1971 § 1.185 (liquidation of corporation); (7) 67 O.S.1971 §§ 46 and 63 (restoration of records). References by Unilateral Consent: (1) 12 O.S.1971 § 688 (after default and resolution of law issues) and (2) 12 O.S.1971 § 1238 (garnishment). References by Bilateral Consent: 58 O.S.1971 §§ 348, 349 (claims against the estate).

¶22. Art. 7 § 7(a), Okl.Const. [1967],

¶23. 183 Okl. 321, 82 P.2d 678, 680 [1938], 117 A.L.R. 1269.

¶24. Supra note 1.

¶25.Our holding here is not to be viewed as an implied authority for making unlimited references, in divorce cases, to persons other than special judges. In all matrimonial suits, references must be limited to accounting or valuation issues of some complexity.

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