RECENT DEVELOPMENTS IN OKLAHOMA FAMILY LAW –

2011 December 9, 2011

David A. TracyNaylor, Williams & Tracy, Inc

918-582-8000david.tracy@nwtlaw.com text “tracy” to 99699

Follow David on Twitter @tulsafamilylaw

FEDERAL DEVELOPMENTS

TURNER V. ROGERS131 S.Ct 2507 (U.S. 2011)

Father found guilty of contempt, sentenced to 12 months with $6,000.00 purge fee

S.C. Supreme Ct. says no due process violation

U.S. Supreme Ct. sets new standards for due process in civil contempt proceedings

CHILD CUSTODY AND VISITATION

DEPLOYED PARENTS CUSTODY AND VISITATION ACT – 43 O.S.150 – 150.10

Deployment does not alone meet Gibbons test - 43 O.S. 112.7

Court may only enter temporary orders during deployment.

UCCJEA governs jurisdiction to enter order

Court may designate a family member or another with a “close and substantial relationship” to child to use deployed parent’s visitation.

43 O.S. 113 AMENDED

Interviewing a child does not diminish the discretion of the Court in determining best interest.

Court is not bound by child’s choice – shall consider all factors in determining custody or visitation.

FOSHEE V. FOSHEE2010 OK 85 247 P.3d 1162

Joint custody in decree. Mom wants to terminate 9 months later

Trial court terminates, awards custody to Mom.

Dad appeals, says kids want joint custody.

Held – regardless of child preference, joint custody not proper where parents are unable to cooperate.

After terminating joint custody, child’s preference would be a relevant factor.

LE V. NGUYEN2010 OK CIV APP 104, 241 P.3d 647

Joint custody, primary to Mom. Mom moves to relocate to NY, both

parents file to terminate joint custody. Trial court allows mom to move with

child, maintains joint custody. Appellate court says trial court can

combine relocation and motion to terminate. Cf, Moore and Atkinson

Held – relocation affirmed, joint custody terminated.

DILBECK V. DILBECK2010 OK CIV APP 142, 245 P.3d 630

Decree entered, Parenting Coordinator appointed.

Parties continue to work with PC after 1-year appointment expires.

Court reappoints – PC recommends custody change. Trial court adopts.

Held – trial court could reappoint PC, but PC could not affect custody order. Custody change reversed.

MARRIAGE OF GUYMER2011 OK CIV APP 4, 245 P.3d 638

Trial court grants child’s psychologist discretion to set and coordinate visitation.

Visitation is for a court to decide or the parties to agree, not for a third party to determine.

GUYTON V. GUYTON2011 OK CIV APP 92, ___ P.3d ___ Default is an inappropriate sanction for

determination of joint child custody. Dad’s lawyer showed up for pretrial unprepared.

Rule 5j sanction, default judgment, granted mom’s motion. Sole custody to Mom. Defaulted Dad on motion to modify child support. Recalculated including 800 per month in money Dad saved by living with his mother.

Rules for district courts were not intended to prevent presentation of evidence in a child custody case. Distinguishes from other civil cases.

CRAIG V. GRAIG2011 OK 27, 253 P.3d 952

Mom gets custody, dad gets visitation; never really exercises. His time is exercised by paternal grandparents.

Dispute between paternal grandparents and mother over activities. Mom says she has to be with child when grandparents visit. Grandparents file motion in divorce case to award them the visitation that their son had been exercising. Dad okay with this. Citing Harkness and Sicking. Trial court says okay. Court of appeals affirms.

Supreme Court - Despite how grandparents characterize, this is between mom and grandparents. In order for grandparents to receive visitation, they must qualify under grandparent visitation statute. Not a best interest test. Three part test. Reversed

HATTON V. LYNCH2011 OK CIV APP 23, 249 P.3d 952

After Dad died, grandma visited kids. Relationship falters. Grandma files for visitation. Mom moves to Oregon. UCCJEA - Oklahoma did not lose jurisdiction, attaches at beginning of case.

No finding that parent is unfit or unsuitable, or that there would be harm to the child if visitation were not ordered.

Grandparent visitation affirmed. Court of Civil Appeals did not examine and reweigh the evidence for abuse of discretion.

CHILD SUPPORT AND PARENTAGE

THORNTON V. THORNTON2011 OK 6, 247 P.3d 1180

$75,000.00 arrears from Texas, collection effort in Oklahoma.

Judgment time-barred in TX, not in OK Validity of judgment is to be measured by

the law in force when rendered. Pre-UIFSA cases suggest time bar in TX

precludes OK enforcement. UIFSA - Longer of two statutes of

limitations determines collectability. 43 O.S. 601-604

MARRIAGE OF GUYMER2011 OK CIV APP 4, 245 P.3d 638

Dad laid off. Went to school. Court imputed income based on prior job. Reversed to impute only that amount of

income that dad could actually make.

HARGROVE V. HARGROVE2011 OK CIV APP 25, 249 P.3d 962 Dad says he made 25k a year. Dad invokes 5th

amendment privilege when questioned about tax returns. Mom appeals income determination.

Mom says invoking privilege in civil case creates negative inference, so income should have been higher.

Appellate court says no abuse of discretion. Mom did not introduce any evidence that Dad actually had more income. Any evidence of more income or lifestyle inconsistent with stated income might have made case.

Judgment for arrears reversed.

BRADSHAW V. BRADSHAW2011 OK CIV APP 8, 247 P.3d 304

Daughter anorexic. Went to treatment. Went back to high school, still under 20.

Mom wanted child support for time daughter was in treatment but not in high school.

Held - wording of statute does not allow for recovery. However, child support automatically resumed when child reenrolled

MARIAGE OF SAGAR2010 OK CIV APP 130, 249 P.3d 91

Final order did not preserve claim regarding amounts due under temporary order.

Rule is t-o merged, but statute allows collection of temporary support until paid. See 43 O.S. 110(c). NO one filed contempt citation to collect amounts under t-o.

Court says DHS is half right. Support under t-o became judgment when past due. Contempt as a remedy not available because no action filed prior to final decree.

GREGORY V. GREGORY2011 OK CIV APP 89, 259 P.3d 914

Child qualifies for SSI at age 18. Dad moves to terminate support. Child still in high school.

Motion to terminate at age 20. Mom counters with 112.1A motion. Dad claims issue preclusion, trial court agrees.

Held – error to terminate support for adult child without hearing on claim for eligibility based on disability.

CLARK V. EDENS2011 OK 28, 254 P.3d 672

One child born during marriage. Decree says no kids. Dad had been paying support. Dad had been seeing kid. Mom cuts him off.

Dad files for declaratory judgment. Mom claims collateral estoppel and fact that dad is not bio dad.

Decree entered prior to UPA. Our UPA claims retroactive application. Court applied pre-UPA law to case, so no retroactive application.

Finding of no children is different from finding there are children. It is not res judicata. Accepting support for 7 years and allowing visitation is estoppel to Mom. (Contrast Barber which says estoppel has no place in custody law)

PROPERTY DIVISION

MARZOULA V. CLICK2011 OK CIV APP 59, 253 P.3d 1004

60k down (separate property), balance of 600k financed. At time of divorce, owed 141K. Loan paid from retained earnings of business.

Wife argues amount of reduced debt is marital. What’s missing is what is securing the note.

Using marital funds to pay down mortgage creates marital interest in property. Different that someone coming into marriage with credit card debt.

Using marital funds to pay off premarital debt does not create an offset. Paying off debt does mean you acquire anything. By analogy, if loan secured by stock, then creating marital interest. If not secured, more like credit card debt.

GALARZA V. GALARZA2011 OK CIV APP 86, 259 P.3d 893 1999 decree award husband military

pension “subject to any portion wife may be entitled to pursuant to military law, regulations, customs or stipulations.”

2009 application for nunc pro tunc order to have decree recite language necessary to divide pension.

Husband says not nunc pro tunc, but motion to modify.

Trial court grants wife’s motion - Affirmed

MARRIAGE OF JOHNSON2011 OK CIV APP 105, ___ P.3d ___

H claims both cars as separate property W admits one car owned before

marriage, but both cars titled in joint names.

Trial court – produce titles or both cars will be considered marital. H fails to produce

Held - affirmed

SUPPORT ALIMIONY

HUTCHINGS V. HUTCHINGS2011 OK 17, 250 P.3d 324

22 year marriage, 3 kids. He makes over 70k.

She makes 22k, is at earning capacity. Trial court awarded 250 a month for 3

years. Court of appeals affirmed. Supreme court gave her 1500 a month

for 36 months. Mom had asked for 2200 month for 5 years.

PROCEDURE

AMENDMENTS TO 43 O.S. § 110

Must exchange within 30 days. 2 years federal and state income tax

returns. 2 months pay stubs. 6 months bank statements. Cost of individual and family health

coverage. Employment related child care costs. Documentation of all debt terms and

balance due.

BOECKMAN V. BOECKMAN2010 OK CIV APP 106, 241 P.3d 296

H appeals contempt conviction from failure to pay under temporary order.

No citation issued – Held – delivery of application adequate.

Contempt application filed before written order – Held – H in court when order entered, so he had notice.

Conflicting evidence of ability to pay – finding of guilt affirmed.

McKIDDY V. ALARCON2011 OK CIV APP 63, 254 p.3d 141

Fees awarded for post-decree motion defense in parentage case.

43 O.S. §110(E) did not apply to parentage cases.

Alternative statutes applied – no transcript, so error not presumed.

CASEY V CASEY2011 OK 46, ___ P.3d ___

Trial court takes case on remand under advisement

Court recuses from protective order case, disagreed with felony case dismissal for W when judge was asst. DA.

Court declined to recuse in domestic case.

Held – trial judge must recuse and new judge must hear remand.

MARRIAGE OF JOHNSON2011 OK CIV APP 105, ___ P.3d ___

Judge A enters TRO in temporary order Judge B enters EPO in protective order

proceeding Divorce decree from Judge A provides for

permanent protective order for three years

Held – abuse of discretion to enter permanent protective order in domestic case.

RECENT DEVELOPMENTS IN OKLAHOMA FAMILY LAW –

2011 December 9, 2011

David A. TracyNaylor, Williams & Tracy, Inc

918-582-8000david.tracy@nwtlaw.com text “tracy” to 99699

Follow David on Twitter @tulsafamilylaw