Other courts have ruled that a money judgment does not come into existence until an action is brought for a determination of the amount of unpaid and delinquent installments. Kuhn v. Kuhn, 273 Ind. 67, 402 N.E.2d 989, 991 (1980); Hough v. Hough, 206 Okla. 179, 242 P.2d 162, 163 (1952). We are satisfied that the liability for such payments is not created by statute, but simply results from a decree which the statute affords the district court the authority to enter.
The above statutes relied on by appellants are founded on the common law, see Leach v. Hepler, supra, and, inasmuch as the liability is therefore not a liability created by statute, the two year statute of limitations applies. See Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952), Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561 (1941). Finally, appellants argue that 45 Stat. 1478-1479 (1929), amending 41 Stat. 1249 (1929), creates a cause of action so that, again, the three-year limitations period provided for liability created by statute applies.
The Court did so without the Legislature's having enacted a law to create the tort in abrogation of the common law. Title 12 O.S. 2001 § 1449[ 12-1449], upon which Woods relies for recovery, did not become a part of the statutory scheme until 1985. Hough v. Hough, 1952 OK 106, ¶ 3, 242 P.2d 162; Smith Engineering Works v. Custer, see note 2, supra.McCormack v. Oklahoma Publishing Co., 1980 OK 98, ¶ 1, 613 P.2d 737; Munley v. ISC Financial House, Inc., 1978 OK 123, 11, 12, 584 P.2d 1336.
¶ 13 In Smith Engineering Works v. Custer, 151 P.2d 404, 407 (Okla. 1944), we explained that "liability created by statute" is a liability that would not exist but for the statute. We applied this definition in Hough v. Hough, 242 P.2d 162 (Okla. 1952), where we explained that a duty to pay child support arose from the common law, and we declined to apply the three-year limitations period for liabilities created by statute. ¶ 14 In County of San Diego v. Sanfax Corp., 19 Cal.3d 862, 140 Cal.Rptr. 638, 568 P.2d 363 (1977), that court explained that a similar three-year "statutory" statute of limitations is used where the statute at issue, as opposed to contract or tort law, serves as the source of the court's decision on the merits.
However, Defendant's exhibit 10 reveals that the appellee had urged the appellant to comply with his support agreement a year before he filed his motion. The record reveals that the trial court applied a five year statute of limitations, pursuant to this Court's holding in Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952). The trial court granted a judgment for an arrearage from December, 1982, through December, 1987, which is five years from the time the Application for Contempt Citation was filed.
We cannot accept this argument because it is quite inconsistent with established precedent regarding actions on liabilities created by statute other than a penalty or forfeiture. See, Hollinger v. Dickinson County, 115 Kan. 92, 222 P. 136 (1924); Kirtland v. Tri-State Ins. Co., 220 Kan. 631 556 P.2d 199 (1976); Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952). Also, in rejecting the analysis in Mullins and employer's arguments herein, we are not acting inconsistently with statute of limitations policy.
(Sec. 2-606, Burns' Indiana Statute, page 126, Vol. 2). In Hough v. Hough, 206 Okla. 179, 242 P.2d 162, we held that an action by a mother against a father to recover delinquent child support payments under provisions of a divorce decree, as to limitations, was governed by 12 O.S. 1951 § 95[ 12-95], subdivision 6, which provides, as follows: "An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued."
In Woods v. Prestwick House, Inc., 2011 OK 9, ¶ 16, 247 P.3d 1183, 1188, for example, the Court noted the definition of “a liability created by statute” as “a liability that does not exist but for the statutory provision,” and refused to apply section 95(A)(2) because the plaintiff's statutorily based claim, for misappropriation of likeness, was the same as an “invasion of privacy” claim under Oklahoma common law. Id. at ¶¶ 2 and 16, 247 P.3d at 1185–86 and 1188; see also Hough v. Hough, 1952 OK 106, ¶ 3, 206 Okla. 179, 242 P.2d 162, 163 (holding that a liability existing at common law is not a “liability created by statute” to which the three-year statute of limitations applied); and Smith Engineering Works v. Custer, 1944 OK 211, ¶ 17, 194 Okla. 318, 151 P.2d 404, 407 (recognizing, as a general rule, “that a statutory obligation to pay damages which the common law does not give” is “a liability created by statute”). ¶ 11 Among the causes of action that the Court has recognized as coming within the definition of “liability created by statute” are claims for retaliatory discharge under 85 O.S. Supp.2010 § 5, and claims against corporate directors for unlawful payment of dividends under 18 O.S.2001 § 1053.
In Woods v. Prestwick House, Inc., 2011 OK 9, ¶ 16, 247 P.3d 1183, 1188, for example, the Court noted the definition of "a liability created by statute" as "a liability that does not exist but for the statutory provision," and refused to apply section 95(A)(2) because the plaintiff's statutorily based claim, for misappropriation of likeness, was the same as an "invasion of privacy" claim under Oklahoma common law. Id. at ¶¶ 2 and 16, 247 P.3d at 1185-86 and 1188; see also Hough v. Hough, 1952 OK 106, ¶ 3, 242 P.2d 162, 163 (holding that a liability existing at common law is not a "liability created by statute" to which the three-year statute of limitations applied); and Smith Engineering Works v. Custer, 1944 OK 211, ¶ 17, 151 P.2d 404, 407 (recognizing, as a general rule, "that a statutory obligation to pay damages which the common law does not give" is "a liability created by statute"). ¶ 11 Among the causes of action that the Court has recognized as coming within the definition of "liability created by statute" are claims for retaliatory discharge under 85 O.S. Supp. 2010 § 5[ 85-5], and claims against corporate directors for unlawful payment of dividends under 18 O.S. 2001 § 1053[ 18-1053].
The statute of limitations for actions to collect unpaid child support was previously five years under 12 O.S. 1981 § 95[ 12-95](6). Logan v. Logan, 1994 OK CIV APP 77, 877 P.2d 51, citing Hough v. Hough, 206 Okla. 179, 242 P.2d 162 (1952). Effective September 1, 1994, the following provision was added to the limitations statute: "(a)n action to establish paternity and to enforce support obligations can be brought any time before the child reaches the age of eighteen (18)."