Recent Developments In Oklahoma Family Law -

2009

December 3, 10, 2009Materials – Julie S. Rivers Slides - David A. TracyJulie S Rivers PLLC Naylor, Williams & Tracy, Inc512 NW 12th St. 1701 S. Boston Ave.Oklahoma City, Oklahoma 73103 Tulsa, OK 74119405-232-6357 918-582-8000julie@juliesrivers.com david.tracy@nwtlaw.com

NEWLEGISLATION

New Juvenile Code

Statutes repealed § 4 – support of children § 5.1 – death of custodial parent § 5A – sibling visitation § 6 – custody to mother of unmarried minor § 7 – allowance to parent of child’s

property § 8 – parent control of child’s property § 9 – abuse of parental authority

New Juvenile Code

Statutes repealed §10 - Emancipation § 11 – Civil action for support of orphans § 12 – Maintenance of disabled adults § 14 – Compensation for voluntary support § 16 – Support after majority § 17 – Control over child’s earnings § 18 – Wages of minor

New Juvenile Code

Statutes relocated § 5 (grandparent visitation) – 43 O.S. 109.4 § 5.2 (access to records) – 43 O.S. 109.4 § 13 (necessaries) – 43 O.S. 209.2 § 15 (support of stepkids) – 43 O.S. 112.4 § 19 (relocation) – 112.2A § 20 (vicarious liability) – 76 O.S. 1.1 § 21.1 custody preference) – 43 O.S. 112.5

New Juvenile Code

Statutes amended 10 O.S. § 7103 – mandatory reporting of

child abuse or neglect. “every person” is now a mandatory reporter.

New Juvenile Code

Obtaining DHS Records 10A O.S. § 1-6-102 – Motion for production

Protection From Abuse

H.B. 1739 43 O.S. § 109 – rebuttable presumption, not in best

interests of child to reside with DV perpetrator. 43 O.S. 110.1 – sets DV limit on public policy favoring

“frequent and continuing contact” 43 O.S. 111.1 – visitation limitations in DV cases 43 O.S. 111.4 – child abuse, neglect, DV limits on

visitation 43 O.S. 112.6 – mandatory attorney fees for DV

victims

PROPERTY DIVISON

Kennedy v. E. I. DuPont129 S. Ct. 865 (2009) Decree waives wife’s interest in retirement

accounts. Husband changes beneficiary designation

on pension, but not on savings and investment plan (SIP)

Husband dies, child and wife claim SIP benefits.

5th Circuit – no QDRO, no waiver Supreme Court says no need for QDRO,

but plan documents control

Elliott v. Elliott2009 OK CIV APP 2, ___ P.3d ___

Decree awards wife undivided ½ interest in pension.

QDRO awards wife a separate interest in plan.

Court reviews PBGC publication re “separate” and “shared” interest QDROs

Held – affirmed – wife’s interest vested in decree, no prejudice to husband

In Re Marriage of King2009 OK CIV APP 49, 212 P.3d 1232

Transfer of assets during marriage to wife.

Husband had child support judgment against him.

In subsequent divorce action, wife claims assets are separate property

Trial court awards property to wife Held – affirmed, property gifted, no fraud

McQuay v. McQuay2009 OK CIV APP 59, ___ P.3d ___

Concrete business Trial court value includes $350,000 in

“goodwill” Issue – does this business have goodwill? Analysis – is goodwill a distinct business

asset, or dependent on personal reputation

Held – goodwill personal to husband, not business, reversed

CHILD CUSTODY

VISITATION

Buffalo v. Buffalo2009 OK CIV APP 44, 211 P.3d 923

Motion to modify custody. Sole reason for change, preference of 10-

year-old child Trial court granted motion. Court of appeals reversed. Preference of

child not well founded. Application of Gibbons standard?

Redmond v. Cauthron,2009 OK CIV APP 46, 211 P.3d 233

Trial court – custody to mother Father appeals, wants equal time. Issue – should 43 O.S. 110.1 apply to final

custody orders? Held – No

Moore v. Moore 2009 OK CIV APP 27, 209 P.3d 318 2001 divorce – joint custody. 2006 move – father does not give statutory

notice. Mom objects – trial court says Dad’s move

not in good faith. Trial court - Termination of joint custody, sole

to mom. Held - affirmed. Denial of relocation,

termination of joint custody and sole custody to mom proper.

CHILD SUPPORT

DHS v. Palmer2009 OK CIV APP 38, 212 P.3d 491

Father owes back child support Father receives death benefits for father’s

death under Energy Employees Occupational Illness Compensation Program

DHS attaches – father claims exemption Admin court says no exemption – district

court says exemption attached Held – exemption does NOT apply

- ADOPTION TPR

Adoption of L.J.S.2009 OK CIV APP 60, 216 P.3d 300

Mother terminated, father consents w/condition that grandparents have right to visit

Child adopted, grandparental rights omitted

Motion to enforce denied by trial court Held – should be granted based on history

of access, and terms of consent.

DISSOLUTIONPROCEDURE

Seirafi-Pour v. Bagherinassab,2008 OK CIV APP 98, 197 P.3d 1097

Marriage in Iran 2002 – in US in 2003 Prenup included dowry Wife gets green card, separates Trial court annuls marriage based on fraud Held – trial court did not abuse discretion.

Affirmed

In Re Marriage of Lahman2009 OK CIV APP 26, 209 P.3d 793

Goodwill value of ranch Court appoints appraiser to give opinion of

goodwill value. Issue – authority of court to call witnesses Held – Court may call own witnesses under

12 O.S. 2614

Cooper v. Cooper2009 OK CIV APP 73 ___ P.3d ___

Motion to set aside decree based on fraud, undue influence.

Trial court denies based on pleadings Held – reversed and remanded for hearing

on Husband’s factual allegations.

In Re Rowe2009 OK 66, ___ P.3d ___

Guardian ad Litem appointed, recommends custody to father

GAL appeals award of custody to mother. Held – appeal dismissed, GAL does not

have standing.

COSTS AND EXPENSES

Marriage of Sanel, 2009 OK CIV APP 7, 217 P.3d 141 Fee application pending, client files

bankruptcy. Firm listed as unsecured creditor, husband as

co-debtor. Firm gets relief from stay, pursues fee app. Trial court denies fee claim for wife’s lack of

post-discharge standing. Attorney appeals Held – court may consider, but fee award will

be property of bankruptcy estate.

Nichols v. Nichols2009 OK 43, ___ P.3d ___

Attorneys fees judgment to client; attorneys lien claimed

Former client files bankruptcy 2000 Former client renews judgment post-

discharge, attorney learns of collection effort

Trial court enforces lien – COCA reverses Held – client is constructive trustee of fee

award.

Recent Developments In Oklahoma Family Law -

2009

December 3, 10, 2009Materials – Julie S. Rivers Slides - David A. TracyJulie S Rivers PLLC Naylor, Williams & Tracy, Inc512 NW 12th St. 1701 S. Boston Ave.Oklahoma City, Oklahoma 73103 Tulsa, OK 74119405-232-6357 918-582-8000julie@juliesrivers.com david.tracy@nwtlaw.com