http://www.okbar.org/family/journal/OBAFLS-JOURNAL-3-2010

OKLAHOMA FAMILY LAW JOURNAL March, 2010

Table of Contents __________________ Recent Developments in Oklahoma Law .................................... P. 1 2010 Case Summaries .................................. P. 25 Section Leadership ................................... P. 45 I want to write an article.................. P. 47 I want to buy the FLS Practice Manual................................ P. 29

We’re Back!

This is the first issue of the new Oklahoma Family Law Journal, published online at the Family Law Section page of the Oklahoma Bar Association website. Look for issues published quarterly in March, June, September and December. Check out page 47 for more information about submissions. Virginia Henson, publications chair.

Recent Developments in Oklahoma Law

By Robert G. Spector, Glenn R. Watson Chair and Centennial Professor of Law, University of Oklahoma School of Law

FEDERAL LAW ERISA; WAIVER OF PENSION IN DIVORCE DECREE; PLAN DOCUMENT RULE

When are the meetings? ....................................P. 48

Kennedy v. E. I. Dupont, 129 S.Ct. 865 (2009).

I want to make a suggestion or ask a question ....................................P. 46

The Supreme Court granted certiorari in this case, ostensibly to determine whether a Qualified Domestic Relations Order was the only method by which a designated alternate payee could waive their right to receive pension benefits. During oral argument it became clear that the issue was not ERISA’s anti-alienation clause but rather whether the plan documents were followed.

Chair’s Column.........P. 47

The decedent, William Kennedy, worked for E.I. DuPont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to "designate any beneficiary or beneficiaries ... to receive all or part" of the funds upon his death, and to "replace or revoke such designation.”. The plan require "[a]ll authorizations, desig-

nations and requests concerning the Plan [to] be made by employees in the manner prescribed by the [plan administrator]," and provided forms for designating or changing a beneficiary. If at the time the participant dies "no surviving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent's estate."

In 1971, William married Liv Kennedy, and in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. William and Liv divorced in 1994, subject to a decree that Liv "is ... divested of all right, title, interest, and claim in and to ... [a]ny and all sums ... the proceeds [from], and any other rights related to any ... retirement plan, pension plan, or like benefit program existing by reason of [William's] past or present or future employment."

William did not, however, execute any documents removing Liv as the SIP beneficiary, even though he did execute a new beneficiary designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont's Pension and Retirement Plan, also governed by ERISA. The Fifth Circuit held that Liv's waiver constituted an assignment or alienation of her interest in the SIP benefits to the estate, and so could not be honored.

The court relied heavily on the ERISA provision for bypassing the anti-alienation provision when a marriage breaks up: under 29 U.S.C. § 1056(d)(3), a court order that satisfies certain statutory requirements is known as a qualified domestic relations order, which is exempt from the bar on assignment or alienation.

Because the Kennedys' divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv's waiver incorporated in it, given that "ERISA provides a specific mechanism (the QDRO)for addressing the elimination of a spouse's interest in plan benefits, but that mechanism is not invoked."

The Supreme Court disapproved of the reasoning of the Fifth Circuit. It found that Liv’s waiver in a divorce decree did not violate the anti-alienation provision of ERISA. It noted that one could think of the waiver as an "arrangement" having the indirect effect of a transfer of Liv’s interest to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent's property, just as it would be to speak of the decedent in his lifetime as his own transferee. It would be hard to say, the court said, that the estate or future beneficiary "acquires" a right

or interest when at the time of the waiver there was no estate and the beneficiary of a future estate might be anyone's guess. If there were a contingent beneficiary (or the participant made a subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet unknown, or on the contents of the participant's subsequent will, or simply on the participant's future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an "arrangement" assigning or transferring anything under the statute, the assignor would be blindfolded, operating, at best, on the fringe of what "assignment" or "alienation" normally suggests.

Therefore the court held that this waiver by a spouse was plainly not barred by the anti-alienation provision.

The Fifth Circuit had found support for its holding in the QDRO subsections, reasoning that "[i]n the marital dissolution context, the QDRO provisions supply the sole exception to the antialienation provision,” But, the court noted, the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the anti-alienation provision was meant to deny any effect to a waiver within a divorce decree that did not qualify as a QDRO, else there would have been no need for the QDRO exception. But this is not so because a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the "creat[ion] or recogni[tion of] the existence of an alternate payee's right to, or assign[ment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan." 29 U.S.C. § 1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee. Not being a mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a nonQDRO. At this point it should be noted that the Supreme Court expressly disclaimed expressing any opinion about a waiver's effect in circumstances in which it is consistent with plan documents. Nor did it express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. On that latter point see Pardee v. Pardee, 2005 OK CIV APP. 27, 112 P.3d 308, (2004) (distinguishing Boggs v. Boggs, 520 U.S. 833 (1997), and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state court divorce decree as "the pension plan 2

funds were no longer entitled to ERISA protection once the plan funds were distributed").

However, even though the Fifth Circuit was incorrect in applying the anti-alienation clause, its decision had to be affirmed under the “plan document” rule. The Supreme Court noted that ERISA requires "[e]very employee benefit plan [to] be established and maintained pursuant to a written instrument," 29 U.S.C. § 1102(a)(1), "specify[ing] the basis on which payments are made to and from the plan," The plan administrator is obliged to act "in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA]," § 1104(a)(1)(D), and the Act provides no exemption from this duty when it comes time to pay benefits.

Therefore the estate's claim stands or falls by "the terms of the plan." See Egelhoff v. Egelhoff, 532 U.S. 141 (2001), where the Supreme Court held that a state statute providing that ERISA designated beneficiaries were automatically revoked by a divorce decree violated ERISA’s provisions and were preempted. Otherwise, a plan administrator would have to figure out whether a claimed waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and other factually complex and subjective determinations. In this case, under the terms of the SIP Liv was William's designated beneficiary. The plan provided an easy way for William to change the designation, but for whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it. The plan administrator therefore did exactly what § 1104(a)(1)(D) required: the documents control, and those name the ex-wife.

The court expressly noted that it was not addressing a situation in which the plan documents provided no means for a beneficiary to renounce an interest in the benefits. Therefore the case resolved itself into basically a reaffirmation of existing law. The plan documents provide the exclusive method for the plan administrator to determine who is entitled to an ERISA benefit.

HAGUE CONVENTION: RIGHT OF CUSTODY; CERTIORARI GRANTED Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), cert.granted 129 S.Ct. 2859 (2009) In a major development the United States Supreme Court granted certiorari in the case of Abbott v. Ab-

bott, to determine whether a writ of ne exeat constitutes a right of custody under Chilean law for purposes of the Hague Convention on the Civil Aspects of the Prevention of Child Abduction. A ne exeat order is one where the custodial parent cannot move the child out of the country of origin without the consent of the other parent or the court. The issue under the Convention is whether this constitutes a right of custody in the left-behind parent under the law of the country of the child’s habitual residence. This is an important issue since abduction is only wrongful when the removal is in violation of a right of custody of the left-behind parent at the time of the child’s removal. The circuit courts have split on the issue of whether a ne exeat order is a right of custody. Three circuits have concluded that it is not a right of custody.

See Fawcett v. McRoberts, 326 F.3d 291 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F3rd 942 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133 (2nd Cir.2000).

However, one circuit court has reached the opposite conclusion. Furnes v. Reeves, 362 F.3rd 702 (11th Cir. 2004). Interestingly in the Croll case Judge Sotomayor dissented from the majority’s holding against recognizing a ne exeat order as a right of custody.

She will now have the unique opportunity to review this issue from the Supreme Court.

MARRIAGE AND DIVORCE ANNULMENT: FRAUD SeirafiPour v. Bagherinassab, 2008 OK CIV APP 98, 197 P.3d 1097 Masoumeh Bagherinassab (Appellant) appeals from an order of the trial court, which annulled her marriage to Mohammad Ali SeirafiPour (Appellee). Appellee and Appellant were married in Iran on August 29, 2002, and again in a ceremony in the United States on February 22, 2003. Prior to the Iranian ceremony, Appellee entered into a prenuptial agreement with Appellant's family regarding the dowry he would pay upon Appellant's demand. Appellee claims that Appellant orally promised him she would never make demand for the dowry. The parties returned to the United States together in December 2002 after Appellant secured a visa. Appellee testified that Appellant left him just a few days after returning to the U.S. They reconciled shortly thereafter and then separated again in April 2003 for approximately four months. In September, Appellant returned to Iran to visit her 3

family. While she was out of the country, Appellee filed for divorce in Iran and also filed for annulment in Oklahoma.

At trial, Appellee testified that Appellant constantly ridiculed him and refused to consummate their relationship through sexual intercourse, all of which was denied by Appellant. After two days of testimony, the trial court found that Appellee established by clear and convincing evidence that Appellant fraudulently induced him into the alleged marriage, granted Appellee an annulment, and refused to enforce the premarital agreement regarding the dowry claimed by Appellant.

Appellant appealed and the Court of Civil Appeals affirmed. The panel noted that the trial court's power to annul a marriage is based in equity. See e.g., re Mosechehe's Estate, 1940 OK 453, 107 P.2d 999 ("A District Court, under its broad, general equity jurisdiction conferred by the Constitution, has power and jurisdiction to annul a marriage . . . ."). It found that the evidence was that before Appellant met Appellee, she applied for a student visa to come to the United States, but her application was denied. Appellee proposed to Appellant only two weeks after meeting her in person in Iran. Appellee also testified that after the two were married and her visa was approved, appellant came home with him. During the flight home, Appellee claims that Appellant started complaining about his age, his appearance, and the way he walks. After they got off the plane, they went to Appellant's sister's home. Appellee claims that Appellant did not want to go home with him but wanted to stay at her sister's home. Appellee claims that he had to persuade her to go home with him. Appellant received her "green card" in the mail, and then left Appellee only nine days after she arrived in the United States. Appellant stayed at her sister's home for three days, and Appellee and his mother had to go to the sister's home to try to convince Appellant to return to Appellee's home.

Although the evidence at trial was conflicting, the trial court stated that it found Appellee "far more credible" and found "inconsistencies on the part of" Appellant. It found Appellee's demeanor to be "reassuring" and Appellant's "to be less reassuring."

It held that the trial court was to be given great deference in determining which witnesses to believe.

Therefore it concluded that the trial court was correct in finding that there was fraud in the inducement of the marriage and that the Appellant had proven this by clear and convincing evidence.

CUSTODY AND VISITATION REFORMATION OF THE CHILDREN’S CODE AND THIRD-PARTY CUSTODY HB 2028 Guardianship of C.D.A. 2009 OK 47, 212 P.3d 1207 HB 2028 is the product of two years work by the Juvenile Reform Commission. It recodified and reformed the Children’s Code dealing with deprived children. (HB 2029 reforms the Juvenile Code dealing with juvenile delinquency). This bill came with an emergency clause and therefore is now effective.

In addition to reforming the Children’s Code, the Commission was charged with reforming the first part of Title 10. The beginning of Title 10 deals with some ancient legislation that has been generally unused since statehood, as well as some aspects of custody and visitation that probably should have been codified in Title 43. The following list indicates the final disposition and changes made with regard to these provisions: Section 4: (Support of Children) Repealed This section provided that: The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the parent having custody is able to give are inadequate, the other parent must assist to the extent of his or her ability.

Comment: In spite of its name the supreme court in LeCrone v. LeCrone, 1980 OK 141, 596 P.2d 1262 held that this statute has: "... no application in child support proceedings arising out of divorce, annulment, or separate maintenance actions, but rather, this statute is the pronouncement of the legal duty of parents to support and educate their children arising out of the parentchild relationship and upon the interest of the state as parens patriae of children so as to prevent the child from becoming a public charge. The statute makes no reference to divorce, annulment or legal separation."

Section 5 (Grandparent visitation): Recodified as 43 O.S. §109.4 Section 5.1 (Death of the custodial parent): Repealed 4

Section 5.2 (Custodial and Noncustodial parental access to information) Recodified as 43 O.S. §109.6.

Section 5A (Sibling visitation) Repealed.

Section 6 (Mother of an unmarried minor entitled to custody) Repealed Except as otherwise provided by law, the mother of an unmarried minor child born out of wedlock is entitled to the care, custody, services and earnings and control of such minor.

Comment: This section was deleted since it is either unconstitutional or unnecessary. To the extent that it would applied to say that a mother of a child born out of wedlock is always entitled to custody, it would be unconstitutional. The court of civil appeals has held that the statute is only applicable to confirm the mother’s custody until such time as the father is determined. Miles v. Young, 1991 OK CIV APP 101, 818 P.2d 1258; Department of Human Services ex rel.

Martin v. Chronister, 1997 OK CIV APP 50, 945 P.2d 511. Prior to the determination of the father’s parentage, the mother is the only parent and therefore entitled to custody unless unfit. No statute needs to confirm that and therefore the statute is unnecessary.

Section 7 (Allowance to parent out of child’s property) Repealed Section 8 (Parents control over children’s property) Repealed Section 9 (Abuse of Parental Authority) Repealed The abuse of parental authority is the subject of judicial cognizance in a civil action in the district court brought by the child or any grandparent on the child's behalf, or by its relatives within the third degree of consanguinity or affinity, or by the officers of the poor where the child resides or by any foster parent of the child or any person who has been a foster parent of the child; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced.

Comment: The elimination of this statute was one of the goals of the custody subcommittee. Although this statute has been in existence since statehood, its exact meaning remained obscure. In Lively v. Lively, 1993 OK CIV APP 62 ,853 P.2d 787.(Released for Publication by the Supreme Court), the court noted

that the statute, although dormant for many years, had received new life when the legislature amended it to include grandparents and foster parents as persons who may bring the action. This indicated to the court that the statute should be used as the basis for third-party custody claims and reversed a trial court determination that grandparents could not bring a custody action under this section.

Substantial interpretative problems remained after the Lively decision. Although the court authorized the use of the statute in Lively as a procedural vehicle for a third-party custody action, it’s language was susceptible to being interpreted as a private action for termination of parental rights. However, in Maupin v.

Hasty, 2000 OK CIV APP 16, 996 P.2d 468, the Court of Civil Appeals held that this statute could not be used to effectuate a private termination of parental rights. This seems logical because if the statute were so construed it would raise substantial issues concerning its relationship to the comparable provisions in the Children’s Code, as well as to the standards for an adoption without consent in the Adoption Code.

There was also an issue as to whether a successful action under this section has the result of emancipating the child; if so, there would be an issue as to the relationship between this section and 10 O.S. §91 which deal with emancipation.

The court in Lively did not give any interpretation of the phrase "abuse of parental authority." However, in Maupin, the court, in dicta, noted that the statute refers to “abuse of authority” and not “neglect of duty.”

Therefore, in the court’s opinion, a failure to pay child support or to visit the child could not amount to “abuse of authority,” although it might show parental neglect.

Given that parental neglect can form the basis of an action in juvenile court to declare the child deprived which could lead to a termination of parental rights, it appears that there was still considerable confusion as to the content of the phrase “abuse of authority.”

Given its confusing nature and the availability of other procedures for third-party custody actions it seemed to add little to the law and contributed only substantial confusion.

Section 10 (Emancipation) Repealed Section 11 (Civil Action for Support of Orphans) Repealed Section 12 (Maintenance of Disabled Adults) Repealed 5

It is the duty of the father and the mother of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. Provided, that the liability of a parent to an institution, nursing home, intermediate care facility, or other resident facility for the care or maintenance of any such poor person shall not be excessive and shall not cause undue financial hardship upon said parent. Provided further, that the provisions of this section shall not apply to charges for care provided by institutions of the Department of Mental Health and Substance Abuse Services or to charges for care provided by Department of Mental Health and Substance Abuse Services outpatient facilities, including the alcohol and drug programs. The promise of an adult child to pay for necessaries previously furnished to a parent is binding.

Comment: To the extent that this statute could be read to require parents to support handicapped children, the statute has been replaced by the provision of 43 O.S. §112.1A. Therefore this part of this section was obsolete.

The last sentence seems to deal with the support of a parent by a child. That is a relatively controversial issue in the United States. The Committee decided that if such a concept should be retained in Oklahoma law, the issue should be decided on its own and not as part of this recodification.

Section 13 (Doctrine of Necessaries for Children.

Recodified as 43 O.S. §209.2 Section 14 (Compensation to Parent for Voluntary Support of Child) Repealed Section 15 (Support of Step Children) (Rewritten and recodified as 43 O.S. §112.4 A husband is not bound to maintain his wife's children by a former husband; but if he receives them into his family and supports them, it is presumed that he does so as a parent, and where such is the case, they are not liable to him for their support, nor he to them for their services.

Comment: This section was retained but rewritten in a simpler fashion to read: “A stepparent is not required to maintain his or her spouse's children from a prior relation-

ship.” The committee concluded that if there was to be an obligation requiring a step parent to support their spouse’s child following a divorce from that spouse, that issue should be decided apart from the recodification.

Section 16 (Support after majority) Repealed Where a child, after attaining majority, continues to serve and to be supported by the parent, neither party is entitled to compensation in the absence of an agreement therefor.

Comment: This statute has also been superseded by 43 O.S. §112.1A. Section 17 (Relinquishment of Control over Children’s Earnings) Repealed Section 18 (Wages of a Minor) Repealed Section 19 (Relocation) Recodified as 43 O.S. 112.2A Section 20 (No vicarious liability between parent and child) Recodified as 76 O.S. 1.1 Section 21.1 (Custodial Preference and third party custody) Recodified as 43 O.S. §112.5 This section requires rather extensive comment.

The Commission agreed that the then current version of §21.1 was very messy. It attempted to set out custodial preferences both for divorce and for child placement in deprived child cases. The decision was made to divide the statute and move the family law aspects to Title 43. The deprived child provisions were recodified under dispositions for a deprived child case.

The bill retains the custodial list currently in subsection (A). However, it removes any indication that this list is in order of preference. The new statute does provide that custody shall be awarded to a parent with three exceptions. They are failure to pay child support and failure to exercise visitation, with the same language as the old §21.1(C). The third exception codifies current case law by allowing the court to award custody to a third-party if a parent is proven affirmatively unfit by clear and convincing evidence. There is a presumption that a parent is affirmatively unfit if the parent is, or is residing with, a person required to register as a sex offender, an alcoholic or drug dependent person, has been convicted of child abuse, or 6

been convicted of domestic violence within the last five years.

A major change occurs with subsections D and E of the new statute. Section D provides that a custody determination where custody is awarded to a third party can only be modified upon a showing of the standard of Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. In other words, in order to modify third party custody there must be a showing of a substantial change of circumstances that directly affects the child, and, as a result of the change, the child would be substantially better off if custody were changed.

This paragraph has the effect of partially overruling McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777, where the court held that all third party custody was to be considered temporary and that a parent could regain custody by showing that the conditions which lead to the award of custody to a third-party had been corrected. In Wrigley the court ignored a long line of Oklahoma cases that applied the change circumstances doctrine to third party custody. See e.g., See Johnson v. Johnson, 1984 OK 19, 681 P.2d 78; Wills v. Wills, 1960 OK 16, 349 P.2d 1; Adams v. Adams, 1956 OK 51, 294 P.2d 831; Russell v. Russell, 1953 OK 21, 253 P.2d 136; Potter v. Potter, 1950 OK 170, 219 P.2d 1011; Garlin v. Garlin, 1932 OK 52, 7 P.2d 463; Morris v. Morris,1921 OK 148, 198 P. 70. These cases are now reinstated as controlling cases.

The policy choice is appropriate. The reason for the heightened standard of Gibbons is to provide for the physical stability of the child. It seems as appropriate to be concerned about the child’s stability in thirdparty cases as in inter-parental custody cases.

However, the doctrine of Wrigley is retained in Subsection E. That section provides that if the thirdparty custody decree specifically states that it is temporary, then the custody determination can be modified upon a showing that the conditions that lead to the temporary custody order no longer exists. This had been the position of Oklahoma prior to the Wrigley decision for parental custody cases. See e.g., Carter v. Carter. 1982 OK 123, 653 P.2d 207. See also Guardianship of M.R.S., 1998 OK 38, 960 P.2d 357. In the Carter case, the custodial mother asked the father to take care of the child while she went to Florida to look for employment. Later she took the child to Florida without informing him. While there the child became ill and needed an operation. The mother contacted the father and asked him to take the child. He did and the couple signed an agreed-upon order that temporary custody was to be with the

father. After the operation, two weeks later, the mother asked for the child to be returned. The father refused and the mother filed a motion to modify the agreed-upon order to return custody to the original decree.

The Supreme Court agreed that custody was to be returned to the mother. The temporary relinquishment apparently indicated that the Gibbons test need not be applied to determine whether the child should be returned. The court indicated that the situation would be different if the mother had voluntarily given the child to the father for a significant period of time.

If, the court said, the child becomes totally integrated into the new home an exception would be in order.

The court said that integration could result because of the nature or duration of the provisional custody arrangement. Determinative factors would include the duration of the temporary custody, the inclination of the parties as to the permanency of the custody, and the age of the child. The court said that if over an appreciable time the child naturally looks to the new custodian for guidance, necessities of life and parental comfort, custodial environment of the child is established. This aspect of the Carter case, concerning the child’s integration in the new home, is not set out in the new statute. Nonetheless, given the concerns about the stability of the child’s environment indicated by the employment of the Gibbons test for third party custody, it would seem appropriate for this aspect of the Carter to be applied to third-party custody modifications.

However, it would seem inappropriate to use the rather broad “inimical to the best interest of the child” standard set out in Guardianship of A.G.S., 2003 OK 1, 65 P.3d 587. That standard appeared to imply that the court could consider a wide range of factors in determining whether children should be returned to their parents. It is more appropriate to limit the court to two considerations: whether the conditions that have lead to the temporary custody order have been corrected and whether stability of the child indicates that the child should be left with the third-party.

The recent case of Guardianship of C.D.A., indicates that there is still substantial disagreement concerning what is necessary to show that the “conditions which lead to the guardianship have been corrected.”

In that case the grandparents, in 2005, obtained guardianship in an emergency proceedings alleging that the mother had just been released from a hospital where she was admitted for attempted suicide. At a hearing on the guardianship the mother and the grandmother agreed to a “reunification” plan for the 7

mother to regain custody. In February, 2007, the grandparents voluntarily returned C.D.A to the mother’s home. C.D.A. lived with the mother for the next ten months. The mother remarried in 2008. After her husband’s visit to the emergency room of the hospital, the grandparents picked up C.D,A. at school and refused to return him to the mother. The mother filed a motion to terminate the guardianship as no longer necessary. The trial court denied the motion in large part based on the testimony of the counselor that had developed the reunification plan. Although the counselor admitted that she was not an expert on alcoholism and had not diagnosed the mother as an alcoholic, she was concerned that Mother denied being an alcoholic. She stated that the mother refuses to choose between alcohol and her daughter, and asks why she cannot have custody of C.D.A and drink, when her parents can. The counselor said she never had any reason to believe the child was in imminent danger during the ten months she lived with Mother.

The mother appealed and the Court of Civil Appeals reversed. It noted that the grandparents' petition for guardianship alleged that a guardianship was necessary for two reasons: (1) that the mother has just been released from Griffin Memorial Hospital after having been admitted for attempted suicide, and the mother presents an imminent and immediate danger to the minor child; and (2) that the minor child has lived with grandparents most of her life, has a stable home life with them, and the mother threatens to move her away contrary to her best interests. The trial court granted the guardianship for these reasons, and it later denied Mother's motion to terminate after finding that these conditions had not been removed. The appellate panel found that denial contrary to the clear weight of the evidence. With regard to the first ground, the panel found that the mother had presented clear and convincing evidence that she was not receiving inpatient mental health treatment, was not suicidal, and was not an imminent threat to her daughter. Even the counselor agreed that the mother is not an imminent and immediate danger to the child. The court found the second ground to be insufficient as a matter of law. The panel found it important that the mother had completed most of the conditions of the reunification plan and that the grandparents had voluntarily returned the child to the mother. See Guardianship of C.D.A., #105,821 (Tulsa 2008).

The Supreme Court reversed the court of civil appeals. Unlike the panel of the court of civil appeals it found the counselor’s testimony “compelling.” It also focused on the incompletion of the reunification

plan. It then noted, without explanation, that the mother had not presented “clear and convincing” evidence that the conditions which lead to the guardianship had been eliminated. It remanded the case to the trial court to conduct an additional hearing to determine whether the conditions had been corrected or whether new conditions ought to be imposed on mother and grandparents.

The case illustrates some of the difficulties surrounding third party custody modifications. Even if the guardianship is labeled as “temporary,” there will still be considerable variation in how different judges view the evidence. Guardianship of C.D.A. seems to indicate that there is still a certain amount of ad hoc reviews of the evidence by appellate courts, with no clear pattern as to when a third party custody modification will be upheld or reversed.

One final matter: The legislature in this bill also amended 10 O.S. §7103 to make it clear that “every person” who had reason to believe that child abuse or neglect has occurred has an obligation to report it to the Department. This clearly indicates intent by the legislature to make attorneys mandatory reporters.

This issue was unclear under the previous statute.

CUSTODY AND VISITATION DOMESTIC VIOLENCE HB 1739 This bill adds issues concerning domestic violence, stalking and harassment to a number of custody and visitation issues. It makes the following changes to the statutes.

1. In 43 O.S. §109, the bill adds a section stating that if the court determines that domestic violence, stalking or harassment has occurred, it raises a rebuttable presumption that any form of joint parenting is not in the best interests of the minor. As well as placing custody, or awarding visitation to person who committed domestic violence, stalking or harassment. This is in addition to §109.3 which basically states the same thing, except this statute notes that the burden of proof for showing domestic violence is by a preponderance of the evidence.

2. Section 109(H)(3) provides that if the parent is absent or relocates due to domestic violence, the court shall not weigh that factor against the relocating or absent parent. Whether this creates an exception 8

to the notice requirement of the relocation statute is unclear.

3. This court in making a custody determination is to consider, as a primary factor, the safety of the child and the parent who is a victim of domestic violence.

It is also to consider the entire history of the person who has committed domestic violence.

4. Section 110.1 is amended to provide that the equal access provisions in the temporary order are subject to the parties agreeing to cooperate and that domestic violence, stalking or harassment has not occurred. The burden of proof element of the statute has been eliminated. The mandatory nature of 110.1 has also been eliminated and the section made discretionary.

5. Several sections have been added to §111.1 to provide that the court can order visitation to the abusive parent only if the court can provide for the safety of the victim-parent and the child. The court can also terminate visitation to the abusive parent under a wide variety of circumstances.

6. A new section, 111.4 has been added. It allows the custodial parent who, in good faith and with a reasonable belief support by facts, believes that the child is a victim of abuse or neglect, to take all necessary action to protect the child, including a refusal to allow visitation.

7. Another new section is 112.6 which provides that if the court determines at the temporary order stage by a preponderance of the evidence that domestic violence or stalking has occurred, the court shall order the abuser to pay reasonable attorney fees both before and after the final decree.

This bill became effective on November 1, 2009.

RELOCATION DENIED: MODIFICATION OF CUSTODY Moore v. Moore, 2009 OK CIV APP 27, 209 P.3d 318 The parties’ 2001 divorce provided they would have joint custody, with the father having physical custody.

In 2006 the father planned to move the children from Tuttle to Collinsville, however, he did not give notice to the mother of the planned move. The mother objected to the move contending that it would reduce her visitation time by 60%, would take the children from their friends, daycare, and school activities, and

that it was not in the children's best interests. She also sought a termination of the joint custody and an award of sole custody to her. The trial court found that the father’s proposed relocation of the children was not in good faith. It also changed custody to the mother.

The father appealed and the appellate panel affirmed.

The panel noted that the trial court ruled that: “The testimony indicates to me that there's a serious question about what the primary motivation for the move is to northeast Oklahoma. Listening to everybody's testimony there's a lot of conflict about that. Was it so (Father) could live closer to his mother? Was it so that his spouse could get another job? I mean, because the job she ultimately ended up with isn't the one she transferred up there for. I mean, that's the bottom line.

It feels like subterfuge to the Court." Because the evidence was in conflict, the trial court’s determination could not be said to be against the clear weight of the evidence and therefore was affirmed.

The panel also found that the trial court was correct in terminating joint custody because the evidence supported the proposition that it was not working because the parties could not communicate with each other as evidenced by the fact that the father planned to relocate the children from central Oklahoma to northeast Oklahoma and failed to discuss this with the children’s mother. The trial court’s determination to award custody to the mother was also affirmed, as are practically all determinations of custody as an original matter, which includes an award of custody following a termination of joint custody.

MODIFICATION OF CUSTODY: PREFERENCE OF THE CHILD Buffalo v. Buffalo, 2009 OK CIV APP 44, 211 P.3d 923 Father filed a motion to modify custody. The trial court determined that no substantial change of circumstances had occurred. However, after a hearing at which the trial court met with the child on his tenth birthday, in chambers, with a court reporter present, the trial court sustained the father's motion to modify custody, subject to the mother's rights of reasonable visitation. The trial court's order specifically stated: The evidence presented by the Plaintiff, Allen Eugene Buffalo, aside from the testimony of the minor child, does not support a permanent, substantial and material change of circumstance such as would warrant a change of custody.

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The order then cited Nelson v. Nelson, 2004 OK CIV APP 6, 83 P.3d 911, noting the court gave significant weight to the child's preference. The mother appealed and the appellate panel reversed.

It approved the trial court’s finding that there had not been a substantial change of circumstances that would justify changing custody under Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. The panel noted that the sum of the father’s material, substantial and permanent change evidence came down to the child’s stated preference to live with his father and a less than ideal sibling relationship with his sister, who also lived with the mother. The sister and the child had engaged in at least two altercations, one of which resulted in a noticeable bruise to the child’s temple and eye area. However, the evidence was unclear regarding the circumstances of the clashes, including why, how and with whom the aggressions began. It was clear from the child’s in-chambers testimony that he was not enjoying his sibling relationship at his mother's house and this appeared have played a significant role in his desire to live with his father. It was also clear that the he was fond of both his parents.

The panel agreed that the law is that a well-founded preference by a child can support a modification of custody without proof of any other change of circumstance. See e.g., Hogue v. Hogue, 2008 OK CIV APP 63, 190 P.3d 1177. Nelson, 83 P.3d at 913; Nazworth v. Nazworth, 1996 OK CIV APP 134, ¶2, 931 P.2d 86, 88. Nazworth noted that it is the child's preference and the supporting reasons justifying that preference that may, in some circumstances according to that panel, which permit the change of custody without proof of any other circumstance beyond the preference. Nazworth, makes it clear that a child's preference which is explained and supported by "good reasons" can justify a change of custody.

The panel, in this case, found that It is the explanation, the supporting reasons and all the factors that led to the preference that allow the trial court to examine the child's preference in terms of the requirements outlined in Gibbons. It held that Oklahoma law requires proof of a material, substantial and permanent change of circumstance, affecting the child's welfare to a material extent, and a showing the child's overall welfare would improve in order to remove the child from the custodial parent and modify custody. Gibbons, 442 P.2d at 48586. In other words, according to the panel, the child's preference does not allow the court to bypass the obstacles articulated in Gibbons, but the child's preference and the reasons underlying

it can be considered and evaluated to determine if the Gibbons requirements have been met. In this case in considering the necessary modification of custody requirements outlined in Gibbons, the panel held that the trial court's decision was clearly contrary to the weight of the evidence.

In arriving at this conclusion the panel noted that 43 O.S. §113 gives the trial court some guidance to determine what role a child's expressed preference to live with one parent over another should play in formulating a custody or visitation order.

Under §113(B)(2), "[i]f the child is of a sufficient age to form an intelligent preference, the court shall consider" the preference, but is not bound by it. If a child is twelve years or older, there exists a rebuttable presumption that he is old enough to form an intelligent preference.” However, the panel noted, the supreme court has also said "the whims, wants and desires of a minor child are not the criteria for determining which parent should be granted custody of a minor child." Davis v. Davis, 1960 OK 196, 355 P.2d 572, 575. Therefore, the panel said, the "intelligent preference" must be reasoned, considered, not whimsical or impulsive, and must have some basis or explanation supporting it.” As the whims and fleeting preferences of a child are not among the criteria to determine initial post divorce custody placement, it found such factors are even less compelling when attempting to modify an existing custody order and ascertain whether a material, substantial and permanent change in circumstance has occurred.

The trial judge asked the child twice during the interview if there was anything about his living situation, which at the time was with his mother, that the child would like the court to change or help him with.

Each time, the child said no. When asked if he liked everything the way it was, namely with his mother, the child said yes. During the course of the interview, he also said he wanted to live with his father. Each of these inconsistent expressions was by the child’s own admissions not the product of a long, thought provoking analysis. When asked by the judge how long he had thought about his idea to live with his father, the child indicated he had come up with the idea that very day.

The Court of Civil Appeals then held that the trial court must carefully examine the child's articulated preference to determine if, in fact, it was an intelligent preference; was well reasoned and considered, or was it whimsical and impulsive. The Court found this to be especially true when a child is young, like in this 10

case where the child had just turned ten. In this case it was clear from the interview that the child did not presently like his sister and that he had recently physically suffered at her hand, but there was no evidence regarding how "permanent, substantial and material" was the deterioration in the sibling relationship. There was also no evidence of what caused the fights and as a result, no evidence of how lingering, systemic or permanent the conflict might be or what might have been done to alleviate it. The child did not indicate that he felt unsafe at his mother's house because of his sister's presence.

In this case the panel held that the child’s expressed preference was insufficiently articulated to form an "intelligent preference." His stated preference to live with his father was equivocal, as he had also indicated he had no desire to change the status quo with his mother, and any substantive evidence regarding the conflict with his sister was lacking to such a degree that determining whether this circumstance was material, permanent and substantial was not possible.

Therefore the child's stated preference did not provide a sufficient basis upon which to modify custody and the trial court erred in doing so.

The case was remanded for a new hearing on the father's motion to modify. The panel noted that on remand, the trial court may consider the child's well articulated expression of preference, but even as a now twelve year old, it noted that preference is not controlling and that the trial court must consider the Gibbons factors to determine the child's best interests.

The opinion is somewhat opaque. It has always been clear that the child’s preference must be an “intelligent preference” in order to justify the trial court’s relying on it. See e.g., Coget v. Coget, 1998 OK CIV APP 164, 966 P.2d 816 (child’s statement that he wanted to live with his father because he would get to play with his half-siblings not sufficient to change custody). In one sense this opinion is just another example of the application of that rule. However, the court also seems to suggest that the child’s preference must relate to a change of circumstance that would justify a change of custody under the Gibbons case. If the circumstances itself would be insufficient to change custody, perhaps it follows that the child’s preference based on those circumstances is also insufficient to change custody.

It is also unclear why the case was remanded. It the father had failed in his burden of proof the case should have simply been reversed. In comparing this case to cases like Nazworth and Nelson, it may be significant that the earlier cases case from the

Tulsa branch of the Court of Civil Appeals while the Buffalo case is from Oklahoma City. It may indicate a significant difference in philosophy between the two branches concerning the role of the child’s preference in custody cases.

EQUAL ACCESS FOLLOWING DIVORCE Redmond v. Cauthen, 2009 OK CIV APP 46, 211 P.3d 233 The trial court awarded sole custody of the children to the mother and the father appealed. The father argued that the trial court abused its discretion in failing, pursuant to 43 O.S.2001 §110.1 to provide him equal time with the parties' minor children. Section 110.1 provides: It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child. The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody and the reason for such determination shall be documented in the court record.

He urged that the public policy set out in the statute should not be limited to the temporary order. He claimed that it is applicable both after the parties have separated and after their marriage has been dissolved.

The appellate panel disagreed and affirmed the trial court. The panel held that although the plain language of §110.1 provides it is the policy of the State of Oklahoma to assure minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children, the "substantially equal access" language unambiguously applies only to the temporary order phase of a case. Therefore it is clear to the panel that the legislature intended to provide both parents "substantially 11

equal access" only for the duration of the temporary order. Therefore, the trial court was not constrained to award the father "equal access" to the children in its final custody and visitation award.

Since the trial court’s custody determination was to be judged under the best interest of the child standard, it was affirmed.

GRANDPARENT VISITATION AND ADOPTIONS Adoption of L.J.S., 2009 OK CIV APP 60, 216 P.3d 300, cert.den., Taylor dissents.

This appeal concerned the question of whether the paternal grandparents of a child were entitled to seek visitation with the child. The child was adjudicated deprived, placed in the temporary custody of the now adoptive parents, and the parental rights of the biological mother were terminated. The father entered an "Appearance and Limited Consent to Adoption" in the juvenile case which provided:

I voluntarily and unequivocally consent to the adoption of [Child] by [Parents], [Child's] current placement, and with the understanding that said adoptive parent[s] have agreed to allow [Child] to receive reasonable visitation with his biological grandparents, . . .

The adoption decree however contained no reference to the grandparents’ visitation. When the adoptive parents refused to allow the grandparents visitation, the grandparents filed an application to seek visitation. The trial court agreed with the adoptive parents and the appellate panel reversed.

The grandparent visitation statute, 43 O.S. §109.4(D) (formerly 10 O.S. §5), provides that: the district court shall not grant to any grandparent of an unmarried minor child, visitation rights to that child: a. subsequent to the final order of adoption of the child; provided however, any subsequent adoption proceedings shall not terminate any prior court granted grandparental visitation rights unless the termination of visitation rights is ordered by the court after opportunity to be heard and the district court determines it to be in the best interest of the child . . . .

This section prohibits an order for visitation by either the paternal or maternal grandparents "subsequent to the final order of adoption" of a child born out of wedlock after termination of the parental rights of the biological father and mother absent "prior court granted grandparental visitation rights." Even in the presence of "prior court granted grandparental visitation rights," §109.4(D)(3) permits termination of those rights if, after hearing, the trial court determines that continuation of grandparental visitation is contrary to the best interests of the adopted child. See e.g., Scott v. Scott, 2001 OK 9, 19 P.3d 273.

In the present case, the father appeared in the juvenile proceedings, and, on the record, consented to the adoption of the child conditioned upon the grandparents' right to visitation, but the decree of adoption contained no provision for the grandparents' visitation. Under these circumstances, the panel said, one might reasonably conclude that, because there was no "prior court granted grandparental visitation right" recognized in the decree of adoption, the trial court was powerless to allow grandparental visitation "subsequent to the final decree of adoption," and the trial court properly denied Grandparent's Motion to Determine Rights to Grandparental Visitation pursuant to §109.4(D)(3)(a).

However, the panel said, the record also clearly established: (1) the trial court in the juvenile proceedings accepted the father's relinquishment of his parental rights and consent to adopt conditioned on the grandparents' visitation, but also on the further condition that the father should have no contact with the child during those visitation periods; (2) the trial court in the juvenile proceedings noted that the parties agreed to confer and consent to reasonable visitation by the grandparents in lieu of a court ordered visitation schedule; and (3) the grandparents exercised visitation with the child until disallowed by adoptive parents. These facts, in the opinion of the panel, clearly established the existence of "prior court granted grandparental visitation rights" contemplated by §109.4(D)(3), and therefore the panel reversed the trial court. The court could only eliminate the grandparent’s visitation right by a hearing on a motion by the adoptive parents to modify or terminate the grandparent’s visitation.

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CHILD SUPPORT AND PARENTAGE CHILD SUPPORT; SEIZURE OF FUNDS Department of Human Services v. Palmer, 2009 OK CIV APP 38, 212 P.3d 491 Palmer received $12,960 by virtue of the Energy Employees Occupational Illness Compensation Program, 42 U.S.C. §7484 et seq., after the death of his father, who had been exposed to radiation poisoning as a result of his employment. DHS seized the funds, totaling approximately $12,960.00, under the terms of the Debt Collection Improvement Act of 1996, 31 C.F.R. §285.1, for the payment of delinquent child support owed on behalf of one of his three children.

Palmer appeared before the Office of Administrative Hearings on the child support enforcement matter requesting the return of the seized funds. The administrative law judge denied his request. On appeal the district court reversed and DHS appealed.

The appellate panel reversed the district court and affirmed the administrative law judge. The panel noted that the provisions of the Debt Collection Improvement Act of 1996 mention a number of federal payments which are not subject to being offset against other debts, including child support. Among them are payments made under the Black Lung Benefits Act, however payments made under Energy Employees Occupational Illness Compensation Program are not mentioned. Palmer claimed the funds he received by virtue of the Energy Employees program were essentially the same as those provided under the Black Lung Benefits exception. The panel rejected his argument. It found there was no authority for expanding the exceptions in the Debt Collection Act. Palmer also argued that the prohibition against assignment of benefits contained in the Energy Employees Act prevented the funds from being used as payment for back due child support. The panel also rejected this argument. It noted that the United States Supreme Court has long held that the assignment and transfer prohibition is for the protection of the government and to prevent fraud upon the Treasury and is not intended to protect the interests of the claimant.

See e.g., Price v. Forrest, 173 U.S. 410 (1899). In Price, the issue was whether a receiver, appointed by a New Jersey court for the collection of a debt owed

by Price, could enjoin Price from obtaining a balance owed him by the U.S. government and demand the funds the government owed to Price be paid to the

receiver. The U.S. Supreme Court said the assignment prohibition statute did not prevent the New Jersey court from ordering Price's funds be paid through the receiver who would hold the proceeds subject to that court's order. The court's ruling was based primarily on the assertion that the assignment and transfer prohibition was not intended to protect Price and was only intended to protect the U.S. government from having to address multiple claimants or organized groups of claimants who might seek to enforce claims to which they had no real relationship. As a result, the court said that forbidding Price to collect the funds from his claim, except through a receiver, was not inconsistent with the statute prohibiting assignment or transfer of the claim. The panel then held that the relationship with the Child Support Enforcement Division was similar to Price and therefore the antiassignment clause was inapplicable.

PROPERTY MILITARY PENSIONS AND QDROS Hodge v. Hodge, 2008 OK CIV APP 96, 197 P.3d 511 Richie v. Richie, 2008 OK CIV APP 106, 197 P.3d 524 Elliott v. Elliott, 2009 OK CIV APP 2, ___ P.3d ___ In Hodge, the parties divorced in 1998 after a thirteen year marriage. Their consent decree provided that the wife receive "one-half Defendant's retirement pay from the military." In 2001, the trial court first issued orders for a direct payment to the wife from the military. The orders were rejected for failing to comply with regulations regarding the direct pay-out of a military pension. The husband retired in 2005 and converted part of his retirement to military disability. In 2005 the parties again appeared in front of the trial court to obtain assistance regarding the pay-out of the pension. The trial court’s order provided that the ex-wife receive 50% of the ex-husband’s pension limited to that amount that had been accrued during the marriage.

The wife appealed arguing that the trial court’s new pay-out order impermissibly modified the divorce decree. The appellate panel agreed and reversed the trial court. The panel noted that the decree provided that the wife was to receive 50% of the husband’s pension but that the pay-out order limited the 50% to the amount of the pension that was accrued during marriage. Although the decree was a consent decree and interpreted under contract law, the panel found that the decree was unambiguous and therefore there was nothing to interpret.

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Although a court could not order that the husband share with the wife that portion of his pension that was accrued after separation, the parties can agree to the contrary. See e.g., Kittredge v. Kittredge, 1995 OK 30, 911 P.2d 903. In this case, the parties did agree that the husband would share with the wife 50% of his entire pension, not limited to the amount accrued during marriage. Therefore when the direct pay-out order attempted to limit the husband’s obligation to 50% of the amount accrued during marriage, it impermissibly modified the decree and therefore reversal was required.

The wife also requested that the court order that the amount the husband was to pay to the wife not be reduced by the husband’s election to take part of his retirement as military disability. The trial court refused the wife’s request and the Court of Civil Appeals also reversed this part of the trial court’s determination. It has long been the rule in Oklahoma that a military member cannot avoid paying the total amount of retirement ordered in the decree by electing to receive disability benefits in lieu of part of the retirement. See e.g., Troxell v. Troxell, 2001 OK CIV APP 96, 28 P.3d 1169; Hayes v. Hayes, 2007 OK CIV APP 58, 164 P.3d 1128.. The normal way of approaching this problem is to require the military member to pay the total amount and leave it to the member to determine where the money is to come from. In that way the trial court does not actually divide the military disability benefit, which is prohibited by federal law. See Mansell v. Mansell, 490 U.S. 581 (1989).

Richie raised the same issue with regard to the relationship between the decree and the QDRO as Hodge, with a different result. The parties consent decree provided that the husband "is awarded all interest in his Military Retirement after (Wife) is awarded her marital portion pursuant to the Qualified Domestic Relations Order provided for herein from date of marriage: 04/09/1988 and date of filing: 12/14/2005." The QDRO which was approved later provided that: The Former Spouse is awarded a percentage of the Member's disposable Military retired pay, to be computed by multiplying fifty percent (50.00%) times a fraction, the numerator of which is two hundred twelve (212) months of marriage during the Member's creditable military service, divided by the Member's total number of months of creditable military service. Former Spouse shall receive her proportionate

share of all cost of living adjustments.

The Former Spouse shall be entitled to the maximum surviving spouse benefits under the Survivor Benefit Plan.

The husband appealed, objecting to the entry of the QDRO on the ground that it awarded the wife part of his pension earned after the parties’ divorce. The appellate panel affirmed.

The panel noted that the formula used provides for the wife to receive a fraction of the monthly disposable military retired pay but that amount will not be determined until the husband retires and would be affected by years of service and any promotions he received before retirement. He argued that the wife would get some of his post marriage income, and that the consent decree expressly limits the wife's share to the benefits earned only during marriage. The panel found t hat the formula recognizes that the longer the husband is employed, the denominator increases, so that the wife's portion of the retirement benefit decreases. As a result, her proportional share of his disposable military retired pay will continue to decrease as his length of service and amount of disposable military retired pay increase.

The panel held that so long as the number of months of marriage is included in the formula, then the wife is not receiving a share of the retirement benefits for a longer term than the marriage. It noted that this type of formula was approved for a division of a fire-fighters pension in Jackson v. Jackson, 2002 OK 25, 45 P.3d 418. It conceded that the wife would benefit in any increases in the ultimate retirement payment paid to the husband. However, it decided that this was not an unfair result where the benefit is a contingent amount to be paid in the future. It concluded that while it would be possible to actuarially value a spouse's interest at the time of divorce and order payment at that time, it thought that was not what the parties chose to do in this case. Therefore, according to the panel the formula used in the QDRO limited the wife's share of his military retirement to the amounts earned during marriage.

It does appear that husband had a good argument.

The pension could have been valued with the numerator the number of months of marriage and denominator the number of months the husband had served in the military at the time of the divorce or separation of the parties. That is the amount that should have been set out in the QDRO. Indeed after the passage of SB 2194, noted below, that is what the trial court would 14

be required to do, absent an agreement of the parties to the contrary, which was not the case in Richie.

The final case in this trilogy is Elliott v. Elliott, which came to the same result as Richie. The parties’ divorce decree provided that: Petitioner [Wife] shall receive a full undivided one-half (½) interest of this retirement benefit from US Airways (payable by US Airways or the United States of America) at the time of Respondent's retirement from US Airways or at any earlier time when such payments begin. Such interest shall be transferred for Petitioner's benefit into a Qualified Domestic Relations Order (QDRO) which will be separately ordered and granted by this Court.

anty Corp., U.S. Dep't of Labor, Qualified Domestic Relations Orders and PBGC 5 and 9 (2006), (available at http://www.pbgc.gov/docs/QDRO.pdf).

The choice of which form to use depends upon the reason for dividing pension benefits. PBGC designed the separate interest QDRO form to be used for property division and the shared interest QDRO form to be used for support payments.

The panel held that granting the wife an undivided half interest in the retirement benefit did not require that the parties share the payments from the benefit.

The decree expressly provided that the wife would receive benefit payments at a time earlier than the husband's retirement. It was the vesting of the wife's property interest under the decree, rather than the QDRO, that proscribed the husband from changing the alternate payee. The provisions of the QDRO therefore did not limit or change the husband's rights under his retirement plans.

The QDRO provided that: Starting at the time specified in Section 5, PBGC shall pay to the Alternate Payee as a separate interest an amount actuarially equivalent to the value of 50% of the Participant's benefit under the Plan. The Participant's benefit shall be determined as of the Date of Plan Termination (3/31/2003).

The Alternate Payee's separate interest shall be determined as a benefit payable over the lifetime of the Alternate Payee.

The husband argued that the decree awarded an undivided interest while the QDRO awarded a separate interest. Therefore, he said, the separate interest reduced the value of his property by taking away his right to select an alternate payee. In addition, he argued that the separate interest award allowed the wife to "change the disposition nature of the retirement account," and to begin receiving retirement benefits at a time other than when he retires. The appellate panel rejected his arguments.

It noted that ERISA established the Pension Benefit Guaranty Corporation [PBGC] within the U.S. Department of Labor to administer the pension plan termination insurance program. See 29 U.S.C. §1302(a).

PBGC has published two types of QDRO forms for parties to use in assigning benefits of a pension plan to an alternate payee. One form is called the "Separate Interest QDRO" and the other is called the "Shared Interest QDRO." See Pension Benefit Guar-

PREMARRIAGE STUDENT DEBT Redmond v. Cauthen, 2009 OK CIV APP 46, 211 P.3d 233 The husband had student loan debt that he incurred prior to marriage. He argued that at trial he testified he and his wife entered into an agreement during the marriage that $92,000.00 from the marital Charles Schwab account was to be used for the sole purpose of paying off his separate student loan debt. The trial court found that there was no such agreement and treated the debt as separate property since it was acquired prior to marriage.

The appellate panel found that this result was within the trial court’s discretion.

GIFTS Marriage of King, 2009 OK CIV APP 49, 212 P.3d 1232 The husband and wife acquired during their marriage more than 300 acres of real property and two oil and gas leases. In October 2000, the husband learned he had fathered a 16yearold child out of wedlock by another woman, that a default judgment had been entered against him in a Kansas paternity action, and that he owed $300,000 in child support. In January 2001, after consulting with his attorney, he conveyed the realty to his wife. In June 2001, he conveyed the oil and gas leases to his wife. Thereafter, he was served in a child support collection action.

After the conveyances, the parties continued living 15

together, although their relationship deteriorated. After one separation, the wife filed for divorce in September 2005. She dismissed the case a few weeks later. The parties separated again and this husband filed the present divorce action on January 5, 2006.

He also filed a motion seeking a determination that the realty and leases were still marital property. The trial court concluded that the wife had received the property as a gift and therefore it was her separate property. The husband appealed and the appellate panel affirmed.

The appellate panel noted that at common law, a husband and wife could not contract to convey one's interest in property to the other. Manhart v. Manhart, 1986 OK 12, 29, 725 P.2d 1234. This rule was statutorily changed in 43 O.S. §204. However, with regard to interspousal conveyances, the Manhart cautioned that: "If they jointly use and manage the property, then it may be considered "jointly acquired." See Hardin v. Hardin, 182 Oki. 229, 77 P.2d 721 (1938).

The controlling facts in such cases are the time of the conveyance in relation to the separation of the spouses, and the completeness of their separation, especially in regard to their dealings concerning the conveyed property."

In this case, the wife presented substantial evidence that the husband conveyed the realty and leases to her with donative intent. She presented a number of documents which indicated that he voluntarily and unconditionally transferred his joint interest in the realty and leases as a gift in order to avoid a divorce and to apologize for past conduct which produced a child and a substantial child support obligation. The appellate panel put it: “To use a common analogy, a spouse who buys his or her mate jewelry in order to apologize for an extramarital affair and avoid a divorce would be hard pressed to convincingly argue that such "peace offerings" were not really gifts.”

The husband, however, relied on Dorn v. Heritage Trust, 2001 OK CIV APP 64, 24 P.3d 886, for his contention that "it really makes no difference why the property was titled or conveyed to one party or the other. Continued joint operation of the property over a four (4) year period was judged to be enough for joint property." The panel found that the husband had misread Dorn. Dorn, the panel held, is consistent with the holding in Manhart that the effectiveness of an interspousal transfer is determined by the intent of the

conveying spouse. In Dorn, the court concluded that a husband had no donative intent when he conveyed his interest in property to his wife's trust because the couple was not contemplating a divorce, the husband continued to have joint use of the trust property as a trust beneficiary, and the property had been conveyed merely for estate planning purposes. In this case, there was nothing in the record to indicate that the husband continued to exercise dominion and control over the property after his conveyance, or that he paid taxes or insurance on it, or was entitled to share in its profits and losses. What evidence there existed was conflicting and therefore the trial court was entitled to determine which evidence to believe. Therefore the trial court's finding that the husband's conveyances were gifts could not be against the clear weight of the evidence.

VALUATION: BUSINESS OR PERSONAL GOODWILL McQuay v. McQuay, 2009 OK CIV APP 59, ___ P.3d ___ The major issue in the parties’ divorce was the valuation of a concrete business that the husband owned and operated. The trial court valued the goodwill of the concrete business at $350,000 and the equipment at $209,500. The husband appealed, arguing that the business had no goodwill. The appellate panel agreed and reversed the trial court.

The husband's concrete business is a sole proprietorship. The wife called the parties' CPA to testify as to the value of the business. The CPA used Revenue Ruling 5960 as a basis for the business evaluation, which he testified was how the IRS evaluates closely held businesses. He used the tax returns to review gross proceeds and net income of the concrete business. He stated that he also used guidelines from the American Institute Journal of Accountancy. According to the expert, Revenue Ruling 5960 states that because of so many variables in a closely held business, it is right to use goodwill if certain circumstances apply. He testified about the three methods used when evaluating goodwill, concentrating on the market value method and the net income approach. He stated that the market value method was the standard for closely held businesses such as a law firm or accounting business. The net income approach was used for salary based types of businesses. He testified that the fair market value of the concrete business, using the market value approach, which necessitates a willing seller and a willing buyer, was between $588,000 and $743,000. The fair market 16

value of the business using the net income approach was between $464,000 and $634,000. Both of these sets of figures included a stipulated amount of $123,000 which was the value of the equipment. He made adjustments for depreciation, added back in the salary of the McQuay's son, and also stated that the son had excessive auto expenses. Unfortunately, the CPA testified he had no other knowledge of the parties' business, did not know of the sales of any concrete business in the county, or how many cement masons were in the county. He did not know what the business was called, or what number of customers would stay with the business if it were sold.

The panel reviewed the Oklahoma cases on goodwill. See Travis v. Travis, 1990 OK 57, 795 P.2d 96; Mocnik v. Mocnik, 1992 OK 99, 838 P.2d 500; Traczyk v. Traczyk, 1995 OK 22, 891 P.2d 1277. It found that the holding of Travis was applicable here, the holding being: (1) Where goodwill is a marketable business asset distinct from the personal reputation of a particular individual, as is usually the case with many commercial enterprises, that goodwill has an immediately discernible value as an asset of the business and may be identified as an amount reflected in a sale or transfer of a business.

(2) If the goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual.

In this case, the CPA attributed the goodwill he was valuing solely to the reputation of the husband as a cement mason. The CPA agreed that if an owner like the husband dies or is unavailable, the goodwill is gone, and you are left with the value of the tangible assets. He also testified that in this case, goodwill was the value of the husband's expertise in the business.

Thus the sum of the testimony was that the goodwill was personal to the husband and not the business.

Thus there was no evidence of marketable goodwill and the trial court had to be reversed.

The court of civil appeal did not discuss, and therefore made no attempt to reconcile, its recent opinion in Duty v. Duty, 2007 OK CIV APP 43, 162 P.3d 939 (Released for Publication by the Supreme Court). That case held that stock options acquired by husband due to the expertise that he acquired during marriage were marital property. The panel in the Duty case treated the husband’s expertise as if it was an asset acquired during marriage. Perhaps the distinc-

tion is that the expertise (or personal goodwill) standing alone is not subject to valuation. However, tangible items that are acquired with the expertise, such as stock options or a long term contract, are marital property and are to be valued as part of the marital estate.

PROCEDURE ADOPTION: SERVICE MEMBERS CIVIL RELIEF ACT Adoption OF J.D.P. 2008 OK CIV APP 103, 198 P.3d 905 The mother and step-father commenced an adoption proceeding alleging that the father's consent was unnecessary under 10 O.S. 2001 §75054.2(B) and (H)1 because, for a period of twelve (12) consecutive months out of the preceding fourteen (14) months, he had willfully failed to contribute to the minor child's support and failed to establish and/or maintain a positive relationship with the minor child. The father objected to the entry of such an order. He alleged that pursuant to the Servicemembers Civil Relief Act, 50 Appendix U.S.C.A. T. II (Civil Relief Act), the time frame identified in §75054.2 was tolled while he was in active military service overseas. He argued that his overseas military service had a "material effect" on his ability to comply with his parental responsibilities because he was called to active duty in the military and served 15 months, between March 2006 and June 2007, in the army with Twelve (12) of the fifteen (15) months being served in Afghanistan. The trial court agreed with the father and the mother and step-father appealed.

The Court of Civil Appeals affirmed. It noted that according to 50 App. U.S.C.A. §502, the purposes of the Civil Relief Act are: (1) to provide for, strengthen, and expedite the national defense through protection extended by this Act [said sections] to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and (2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of ser17

vicemembers during their military service.

Section 526(a) of the Civil Relief Act provides: The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns.

There are no exceptions to this provision. The only critical factor is military service and once that circumstance is shown, the period of limitation is automatically tolled for the duration of service. In this case, the father was an active member of the armed services with overseas military assignment in Afghanistan during most of the relevant time period. Accordingly, the Civil Relief Act tolling provision was applicable and the trial court was prohibited from including any period of the father's military service in calculating the time periods. Since the relevant time frame for showing father's lack of parental effort, support and involvement occurred while he was in active overseas military service, the trial court was correct when it determined that the petitioners were unable to establish the essential time element of their claim.

ATTORNEY FEES: BANKRUPTCY Marriage of Sandel, 2009 OK CIV APP 7 ,___P.3d ___ (cert.denied; Opala dissents) Following the couple’s divorce, the wife sought attorney fees. Just prior to the determination of the fee issue, the wife filed for bankruptcy. In her bankruptcy petition, she listed her divorce law firm as an unsecured creditor. However, she also indicated that there was a codebtor on this claim and listed the husband as the codebtor. The law firm was granted relief from the automatic stay in order to prosecute the fee application. Ultimately the bankruptcy court discharged the wife of all her debts including the debt owed to the law firm. The trial court then denied the law firm’s request for fees finding that the wife had no standing to seek them after the discharge.

The law firm contended at the trial court, and on appeal, that it had the authority to seek fees on its own behalf independently of the wife, relying on Swick v.

Swick, 1993 OK 151, 864 P.2d 819, which the firm contended gave the attorney standing in his own right to seek to recover and the right to keep any attorney fees awarded. The appellate panel found this reading of Swick far too broad.

The panel noted that an attorney representing a deceased party in a divorce proceeding clearly has a claim for attorney fees in the client's probate proceeding, the issue in Swick. However, the claim in Swick fell under a different part of the statute than the claim in Sandel. In Swick the court relied on the current 43 O.S. §110(E) which provides that:

The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys.

This case, by contrast, involves 43 O.S. §110(D), which does not contain the provision “or their respective attorneys. In the absence of that phrase, the Court of Civil Appeals could not find any authority for the proposition that an attorney for one party to a divorce has a claim for attorney fees independent of the contractual relationship between the attorney and that party or the court's authority to require the other party to the proceeding to pay those fees.

The panel then found that the wife’s claim for fees was a part of the bankruptcy estate. If the claim against the husband for attorney fees belonged to the law firm, it would not have needed permission from the bankruptcy court to pursue that claim. Although any attempt to enforce the law firm's contractual rights against the wife for the fees would have been stayed by her bankruptcy filing, the law firm's application did not seek to recover against the wife. Rather, the firm's application asked the court to require the husband to pay wife's reasonable expenses incurred in the divorce proceeding pursuant to 43 O.S. §110(D). There was no bankruptcy proceeding filed by the husband which would have prevented the prosecution of the application against him. Nonetheless, the firm sought relief from the bankruptcy court in wife's proceeding, as it was required to do, because the claim for attor18

ney fees asserted in the application was an asset of wife's bankruptcy estate.

Therefore by granting the law firm's motion and lifting the automatic stay, the bankruptcy court allowed the it to pursue the wife's claim on behalf of the bankrupt's estate. That relief, however, the panel held, did not constitute an abandonment of wife's claim for attorney fees. The firm was specifically authorized by the bankruptcy court to pursue that claim on behalf of the estate. Any recovery will be property of the bankruptcy estate. Whether the firm may recover those fees, if awarded, is therefore a matter for the bankruptcy court. The case was remanded to the trial court to determine whether the husband should be required to pay fees and, if so, in what amount.

ATTORNEY FEES: FEES PAID DIRECTLY TO THE CLIENT Nichols v. Nichols, 2009 OK 43, ___ P.3d ___ (rehearing pending) An attorney fees award to a divorcing spouse along with any money received in payment of that award are impressed, by operation of law, with a constructive trust for the benefit of the attorney who represented the spouse. The spouse is the trustee of the trust and the lawyer to who represented the spouse is the beneficiary. The continuing nature of the attorney fee award that is the corpus of the trust militates against the running of the statute of limitations unless there has been a repudiation of the trust by the trustee.

The court of civil appeals had rule that the statute of limitations barred the lawyer from enforcing a charging lien against the amount of funds the wife had received. The wife had gone through bankruptcy and, four years later, sued her ex-husband to collect the award. In the bankruptcy she had listed the law firm as an unsecured creditor. The Supreme Court determined that the court of civil appeals erred in considering this as a case involving a charging lien. Instead it should have been analyzed as a constructive trust.

Therefore the wife’s bankruptcy had no effect on the lawyer’s rights in the fee award because the award was viable and could be enforced. In addition, the bankruptcy trustee had abandoned any claim the wife might have to the award and the award was not for her benefit, but for the benefit of the lawyer.

Justice Taylor concurred, noting that nothing in the opinion decided whether the wife owed any additional fees to the lawyer.

STANDING TO APPEAL Rowe v. Rowe, 2009 OK 66, ___ P.3d ___ Adoption of Baby W., 2009 OK CIV APP 21, ___ P.3d ___ In Rowe, the parties filed to terminate their joint custody plan with each parent seeking sole custody.

The trial court appointed a guardian ad litem for the child. The trial court terminated the joint custody plan, granted sole custody of the child to the mother. The father was given visitation and directed to pay child support. The order released the guardian ad litem from further representation or obligation in the case.

Neither parent appealed. However, the guardian ad litem filed an appeal asserting that the trial court's ruling was against the weight of the evidence because the trial court did not follow the guardian’s recommendation that sole custody should be placed with the father. The court of civil appeals dismissed the appeal, concluding that the guardian lacked standing to pursue the appeal. The Supreme Court granted certiorari, vacated the opinion of the court of civil appeals, but affirmed their conclusion that the guardian lacked standing.

The court noted that a guardian ad litem may be appointed to objectively advocate on behalf of the child and to act as an officer of the court to investigate all matters concerning the best interests of the child.

The legislature created in §107.3 a blended role of guardian ad litem and attorney for the children. The guardian ad litem, the court said, does not have a true attorney client relationship with the minor children.

The guardian’s obligation remains the same as that of the trial court: the child's best interests, even though the child's wishes may be otherwise. See Kahre v.

Kahre, 1995 OK 133 916 P.2d 1355. The guardian ad litem may be a witness in the case. Kelley v. Kelley, 2007 OK 100, 175 P.3d 400.

The court also noted that a minor child is not a party to a custody case. Children are not parties to their parents' divorce and the children do not have the right to select their own attorney to represent their interests in proceedings involving their parents' divorce. See Wallis v. Wallis, 2003 OK CIV APP 77, 78 P.3d 562, 564. Children therefor lack party status to appeal the court's custody order in a divorce proceeding.

Traditionally only parties to the case, or a person aggrieved by the trial court’s decision, may appeal a case. One cannot, the court held, appeal from a decision, however erroneous, which does not affect 19

one's substantial rights. In this case, the guardian ad litem is neither a party, nor a person aggrieved by the trial court’s decision. Therefore she had no standing to appeal the trial court’s determination of custody.

In Baby W., the trial court rejected a proposed decree of adoption because the adoptive parents had not complied with Oklahoma County Administrative Directive AD7200621. That directive provides in part that: Judges assigned to the Oklahoma County Probate dockets shall adhere to the following rules and procedures when dealing with adoptions: 1. Strict compliance with allowable costs and expenses detailed in 10 O.S. [2001] § 75053.2B is mandatory. ....

3. The Public Defender shall be appointed in all cases where adoption related costs and expenses are requested and shall assist the Court in the review of the application for such costs and expenses. The Public Defender shall be an advocate for strict compliance with the law. (10 O.S. § 75051.2).

The court then ordered the party to obtain approval of the expenses from the Public Defender. The adoptive parent objected to the Public Defender’s request to review the adoption file in order for an expert witness to give an opinion as to the appropriateness of the expenses provided to the birth mother. When the trial court overruled their objection, the adoptive parents dismissed their petition for adoption, claiming that they would file the adoption in their home state of Massachusetts. The Public Defender objected to the dismissal, however the trial court overruled the objection. The Public Defender appealed.

The appellate panel affirmed. The panel noted that the issue had already been decided by the Supreme Court in Adoption of Baby G., 2008 OK 92, 195 P.3d 377. In that case the court considered the standing of the same public defender, appointed in the same district court pursuant to the same administrative order, to bring an appeal. The court there noted: The orders approving the costs and expenses in the adoptions at hand do not impose a burden or obligation on the Public Defender, nor have any binding effect upon a right, interest,

person or property of the Public Defender. "Conjecture or speculation about possible adverse consequences that may flow from the decision at some point in the future will not suffice to support a person's 'aggrieved' status. One cannot appeal from a decision, however erroneous, which does not affect one's substantial rights." Underside v. Lathrop, 1982 OK 57, ¶ 7, 645 P.2d 514, 517 (footnotes omitted).

The Public Defender is simply not "aggrieved" . . .

However this case differed from Baby G, in that in this case the dismissal occurred prior to the adoption decree while in Baby G, the Public Defender appealed the issue of expenses post-decree. Therefore the court decided, as a matter of public interest, to decide the issue of the appropriate role of the court when prospective adoptive parents dismiss their petition to adopt.

The Adoption Code provides that when the petition to adopt is filed, the court acquires jurisdiction over the child. See 10 O.S. § 75021.1(Supp. 2005). That jurisdiction continues until such time as the adoption petition is granted or denied. A voluntary dismissal of the petition does not divest the court of jurisdiction over the child. Rather, a dismissal of the petition constitutes a failed adoption and therefore the trial court must hold custody hearing to determine who shall have custody of the child. 10 O.S. § 75056.4 (2001).

AUTHORITY OF THE COURT TO CALL WITNESSES Marriage of Lahman, 2009 OK CIV APP 26, 209 P.3d 793 (cert.denied; Taylor, Opala, Kauger dissent) The husband prior to marriage a substantial ranch.

During the marriage, the parties operated the ranch and a manufacturing business, and acquired personal property and debt. At trial, Wife called an expert witness to express his opinion on the value of the property at issue. The husband objected. After a preliminary examination, the trial court allowed the expert’s testimony "as an accountant based solely on the income approach" to property valuation, but noted the witness was "not an expert appraiser," and that he "did not take into consideration other matters . . . normally taken into consideration by appraisers such as comparable sales . . . ," and stated that "his lack of 20

expertise will [affect] the value the Court gives to his testimony." Both parties testified, and both offered their opinion concerning the value of the marital assets and extent of marital debt. The husband estimated the value of the ranching business, the manufacturing business (with no "good will" value) and other divisible property at between $483,000.00 and $509,000.00, subject to total marital debt of slightly less than $477,000.00. The wife estimated the value of the ranching business, the manufacturing business and other divisible marital property at about $485,000.00, subject to total marital debt of slightly less than $349,000.00. The wife also recalled her expert witness. Over the husband's renewed objection, the trial court allowed the expert to express his opinion concerning value of the manufacturing business, which he estimated at $4.345 million.

Over the husband's objection, the trial court subsequently appointed one Martin VanMeter to appraise the good will of the business. After an additional hearing, and on consideration of the court appraiser's testimony and evidence, the trial court valued the business's good will at about $35,500.00, and ordered the husband to pay one-half of that amount to the wife.

The husband appealed and argued that the trial court erred in appointing the appraiser to value the good will of the business after both parties had presented all their value evidence and rested. He asserted that the trial court should have decided the issue based solely on the evidence adduced by the parties.

The appellate panel affirmed.

It noted that Oklahoma law permits the trial court, in the exercise of its discretion, to call and interrogate its own witnesses or the witnesses of the parties. 12 O.S. §2614(A), (B). While the comment to §2614 suggests this power "should be exercised sparingly, particularly in jury cases where the jury might be unduly influenced by the court's participation in the presentation of evidence," the panel found that there is no potential for undue influence of the fact finder in a nonjury trial.

It also found that in other states the trial court does possess the discretion to appoint appraisers to value marital assets, particularly where the parties have not presented sufficient evidence on the issue, although the court could not find any Oklahoma authority on point. For other states see, e.g., Dover v. Dover, 821 S.W.2d 593 (Tenn. Ct. App. 1991 ); Gueli v. Gueli, 435 N.Y.S.2d 537 (N.Y. Sup. 1981); Robinson v.

Robinson, 569 S.W.2d 178 (Ky. Ct. App. 1978); Lavene v. Lavene, 372 A.2d 629 (N.J. Super. A.D. 1977).

The court then held that given the power of the trial court to call and interrogate witnesses under §2614, “we are satisfied the trial courts of this state likewise possess the discretionary authority to appoint appraisers for the valuation of marital estates. Consequently, we will not disturb the trial court's discretionary decision to appoint an appraiser unless the trial court has abused its discretion.” Given the weakness of the expert testimony presented by the wife, and the husband's assertion of no good will value, The panel held that it could not say that the trial court abused its discretion in appointing an to appraise the business good will.

Interestingly the panel did not discuss the fact that when the Evidence Code was enacted, Oklahoma did not enact Federal Rule of Evidence 706. Professor Whinery in his Commentary on Oklahoma Evidence §26.8 notes that the reasons for the rejection of §2706 are not discussed in the Evidence Subcommittee Notes. He also notes that the rejection of this rule should not affect the power of the court under §2614 to call its own witnesses, including experts. However, there is no mechanism for the payment of those experts. It could be argued to the contrary, that the power of the court to call witnesses, under §2614, is limited to lay witnesses, given the rejection of Federal Rule 706.

The panel also upheld the property division itself as equitable. The accords with the long-standing practice of the court of civil appeals to affirm all property divisions, so long as the actual division of property is not grossly disproportionate.

COLLATERAL ATTACK ON DIVORCE DECREE: FRAUD Cooper v. Cooper, 2009 OK CIV APP 73, ___ P.3d ___ The parties’ agreed-to divorce awarded the wife most of the marital property and required the husband to pay her $500 a month alimony for ten years. Ten days after the divorce decree was filed, the husband filed a motion to vacate. He asserted that he was on medication and was being treated for anxiety and major depression. He said he was not represented by counsel and that the wife pressured him into signing the decree. The trial court denied the motion but said that the parties’ could file a joint motion to set aside the divorce under 43 O.S. §133. The husband appealed.

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The panel determined that admissions in the parties’ briefs could be used to provide a basis for reviewing a decision when the appellate record was otherwise insufficient. See e.g., Stork v. Stork, 1995 OK 61, 898 P.2d 732. It then proceeded to discuss whether the husband’s motion to vacate was proper under 12 O.S. §1031, or whether §133 provided the only basis for vacating a divorce decree. At this point it should be noted, as the court did in a footnote, that neither issue needed to be decided. Under 12 O.S.2001 § 1031.1 the trial court has "a very wide and extended discretion" that is "almost unlimited." Schepp v. Hess, 1989 OK 28, ¶ 9, 770 P.2d 34, 38. A trial court may use its authority within thirty days to correct, open, modify, or vacate its judgment or decree on its own motion, with or without the consent of either party, and may vacate all or only a portion of the decree. For examples in family law cases see, for Arnold v. Arnold, 1944 OK 292, 153 P.2d 224 and In re Pugh's Estate, 1955 OK 87, 281 P.2d 937. Unfortunately the parties did not raise §1031.1.

First, the appellate panel dismissed the trial court’s reliance on §133 as the sole method of vacating a divorce decree. That statute has been in existence since statehood. It does allow parties to file a joint motion to vacate a divorce and in the motion they must show that neither has remarried. However, it has never been the sole method of filing a collateral attack on a divorce decree. A divorce decree, like any other judgment is subject to the vacation provisions of 12 O.S. §1031, including fraud, as alleged in this case.

In this case the appellate panel noted that the term “fraud” when used in the statute includes legal fraud, unfair advantage, duress and undue influence. See e.g., Bradshaw v. Bradshaw, 1977 OK CIV APP 51, 578 P.2d 762. It found that the husband alleged sufficient facts, which if true, would justify setting aside the divorce decree. The parties concede that the husband was suffering from a severe mental condition, was not represented by an attorney when he signed the settlement agreement, that the wife received a disproportionate share of the marital property, and that the alimony award was in excess of her own actual needs. Under these facts, there is a presumption that undue influence was used and it is incumbent upon the party relying on the divorce decree to prove that the agreement was fair. Therefore the case was reversed and remanded to the trial court to hold a hearing to determine the accuracy of the husband’s factual allegations.

It is important not to read the holding of the case too broadly. In Oklahoma the cases concerning vacation

for fraud cases fall into two distinct types. First there are those cases in which both parties are represented by counsel. Second are those cases where only one party was represented. If both parties are represented by attorneys then the law expects counsel to properly conduct the representation. The parties are no longer in a fiduciary relationship which existed prior to the proceeding. “Parties locked in forensic combat, with each represented by separate counsel, are regarded in law as standing in an adversarial posture.”

Chapman v. Chapman, 1984 OK 89, 692 P.2d 1369.

In particular Gabbert v. Johnson, 1981 OK CIV APP 42, 632 P.2d 443 noted that "Both parties were represented by able counsel. Once she filed her action, the woman no longer enjoyed a confidential relationship with her husband. He did not have to voluntarily disclose anything. It was incumbent upon her to use available legal modes of discovery to acquaint herself with facts sufficient for her to make a self-protective "divorce settlement." Thus, for example, when both parties are represented, failure to discover assets is not fraud.

However, if , as in Cooper, only one party is represented by counsel, the result is very different.

Since both parties are not represented by counsel, the fiduciary relationship between husband and wife continues to exist. When fraud is alleged to set aside the divorce decree the burden is on the person procuring the decree to show that the decree was procured in good faith and is equitable. Pitman v. Pitman, 1985 OK CIV APP 16, 699 P.2d 1108. If the decree is “fair, just and equitable” the burden of proof is met. Bridges v. Bridges, 1975 OK 170, 544 P.2d 493; Looney v.

Chastain, 1964 OK 198, 395 P.2d 571; Beyer v.

Beyer, 1964 OK 64, 390 P.2d 865.

A number of courts have noted that normally, proof of actual fraud consists of a showing that: (a) there was a misrepresentation of a material fact; (b) the declarant had knowledge the misrepresentation was false; (c) the misrepresentation was made with intent to deceive; (d) the receiver justifiably relied upon the misrepresentation; and (e) the receiver was damaged. See e.g., Bradshaw v. Bradshaw, 1977 OK CIV APP 51, 578 P.2d 762. However, as the court correctly noted in Cooper, the cases also state that evidence of "legal fraud," undue influence, or unfair advantage justifies a court of equity in setting aside a property settlement agreement. Key v. Key, 1963 OK 288, 388 P.2d 505; Brasier v. Brasier, 1948 OK 251, 200 P.2d 427; Burton v. Burton, 1936 OK 317, 56 P.2d 385; Mann v. Mann, 1929 OK 102, 275 P. 348; Wooden v.

Wooden, 1925 OK 594, 239 P. 231; Montgomery v.

Montgomery, 1914 OK 95,139 P. 288.

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It is in this context, where one party is not represented by counsel, that courts have held that “by reason of the special confidential or fiduciary relation existing between husband and wife the opportunity of one to take undue advantage over the other exists, and any course of dealing between them settling property rights preparatory to securing a divorce is to be carefully scrutinized, and the slightest trace of undue influence or unfair advantage justifies a court of equity in setting aside a contract purporting to settle property rights.” Key v. Key, 1963 OK 288, 388 P.2d 505. The proof of undue advantage is usually by showing that the property division is grossly unfair, as the fact of Cooper so indicated. See Bradshaw v. Bradshaw, 1977 OK CIV APP 51, 578 P.2d 762. (“Last but probably most important are the terms of the settlement itself whereby appellant wife received practically nothing compared to what Appellee husband received.”); Coffey v. Coffey, 1954 OK 313, 279 P.2d 341.

The Cooper decision falls firmly into the last category of cases. However, if both the husband and wife were represented by counsel, the result, under §1031 would be very different. If both parties are represented, they may agree to almost any result, as the Chapman and Gabbert cases hold.

CONFLICT OF INTEREST: DISQUALIFICATION Atkinson v. Rucker, 2009 OK CIV APP 30, 209 P.3d 796, cert.den.

The appellants, Patrick Atkinson, and Margaret Rucker, sought to reverse the trial court’s granting the motion of Intervenor/Appellee, Frank Tomacek, to disqualify attorneys N. Franklyn Casey, Lawrence A.G. Johnson, and Robert L. Briggs from further representation of Atkinson and Rucker.

Atkinson sought a declaratory judgment declaring he and Rucker were not married. The petition alleged Rucker referred to Atkinson as her dependent, spouse, or husband in order to obtain health insurance for Atkinson through Rucker's employer and to "save on taxes." The petition alleged that Atkinson never intended to be married to Rucker and stated he sought "to correct the erroneous tax returns filed during the years 19922000." The petition stated, "Before Plaintiff may settle the dispute regarding the tax returns and file corrected returns, it is a prerequisite that this court declare that Plaintiff and Defendant were never married." Rucker did not answer. Atkinson moved for summary judgment, and Rucker did not

respond. The trial court entered judgment on declaring "the parties are not now and have never been husband and wife."

After the trial court issued its order Tomecek petitioned to intervene and vacate the judgment, alleging Rucker had filed a petition for divorce against Tomecek in March 2004, claiming a common law marriage to him and seeking a substantial property division. Rucker objected, asserting Tomecek was a stranger to the litigation. Tomecek asserted that he had an interest in the determination of whether Rucker was common law married to Atkinson because it affected his defense in Rucker's divorce action against him. The trial court granted intervention over Atkinson's objection.

Tomecek then moved to disqualify the attorneys, Casey, Johnson, and Briggs from representing either Atkinson or Rucker on the ground that they were necessary witnesses and had colluded in soliciting Atkinson and providing legal services to prosecute the declaratory action for Rucker's benefit.

After an evidentiary hearing, the trial court granted the disqualification motion based on the following facts: Attorney Johnson filed the declaratory judgment action as Atkinson's attorney after a lengthy conference with Casey, Rucker's divorce attorney, but without speaking to or meeting with Atkinson. Briggs, an attorney with Casey's firm, prepared the pleadings for the declaratory judgment action under Casey's direction. At the time Casey directed Briggs to prepare the petition, Casey knew Rucker denied any intent to be married to Atkinson and Atkinson denied any intent to be married to Rucker. Atkinson did not authorize Casey to file a declaratory judgment action on his behalf. Johnson first contacted Atkinson four days after he filed the petition on Atkinson’s behalf. Johnson said he went over with Atkinson the affidavit prepared by Briggs for Atkinson's signature, and advised him that the representations made under oath were admissions of tax fraud and insurance fraud.

Atkinson said his discussion of the affidavit with Johnson did not include the consequences of swearing he filed fraudulent tax returns or obtained insurance coverage under a family plan. Johnson said he "could care less" that his testimony contradicted that of his client. No one sent Atkinson a copy of the declaratory judgment.

The trial court concluded that (1) Casey, Johnson, and Briggs were necessary witnesses regarding their actions in obtaining the declaratory judgment, (2) they had engaged in professional misconduct, and (3) 23

allowing them to continue their representation of Rucker and Atkinson in this matter would threaten the integrity of the judicial process. It disqualified them from further representation of the parties in this matter. Atkinson and Rucker appealed, represented by Johnson and Casey.

The appellate panel affirmed. It noted that the trial court's fact findings in the were well supported by the testimony in the record. Therefore they were not clearly erroneous. The appellate panel also concluded that the trial court applied the correct legal standard in deciding the motion to disqualify the three attorneys. It considered whether harm to the integrity of the judicial process would result if the attorneys were not disqualified, and properly considered the threat presented by the attorneys' violations of the Rules of Professional Conduct. In particular, the attorneys' roles in deceiving the trial court by presenting the declaratory judgment action as an actual controversy between Atkinson and Rucker when in actuality they were acting in concert for Rucker's benefit constituted harm to the integrity of the judicial process.

Atkinson's later ratification of Johnson's actions did not cure the attorneys' deception of the court. In addition, the panel found, the attorneys' status as necessary witnesses provided independent grounds for their disqualification.

DATE OF THE DIVORCE

what constitutes an abuse of discretion in determining the date on which a divorce is granted or in refusing to delay the granting of a divorce. Given that this issue has not been raised previously in Oklahoma, it is not surprising that she cited no authority. However, the panel applied the rule that propositions without authority will not be considered on appeal unless apparent on the face of the decree and rejected her argument.

The husband also argued that the appeal should be dismissed. He claimed that the only reason the wife filed the appeal was to delay the date of the divorce and unless the appeal was dismissed she would achieve her objective, contrary to the trial court’s order. The panel refused to dismiss the appeal, however, it held the appeal did not delay the date of the divorce and that the divorce was effective when it was granted in November, 2008.

The appellate panel noted that it is clear that if an appeal does not raise the propriety of the granting of the divorce, the divorce is final and takes effect from the date it is pronounced. If an appeal does raise the issue of whether the divorce should be granted the pre-decree status of the parties continues until the appellate court rules. 43 O.S. §127. See Wilks v.

Wilks, 1981 OK 91, 632 P.2d 759. Since the wife, in this case, did not object to the granting of the divorce, but only to its timing, and since the wife only appealed the latter issue, the divorce was actually final and effective when pronounced.

Bryan v. Bryan, 2009 OK CIV APP 77, ___ P.3d ___ The parties’ divorce case was tried in November, 2008. The wife requested that the divorce be delayed until May, 2009, so that she could become eligible for "full medical, commissary, and exchange privileges."

The husband opposed the wife’s request. The husband opposed the wife’s request even though he acknowledged that there would be no additional expense to him if the wife received indefinite medical benefits by being married to him for twenty years. He said he wanted to “get on with his life” and that further court appearances would cost him time and money.

The trial court refused to delay the divorce and the wife appealed.

The court of civil appeals affirmed the trial court.

The panel disagreed with the husband’s contention that the trial court had no discretion to delay the divorce. The panel, without citing authority, held that as a court of equity a trial court had broad discretion over divorce matters. Nevertheless, the trial court was still affirmed because the wife cited no cases on

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2010 Case Updates

By Robert G. Spector, Glenn R. Watson Chair and Centennial Professor of Law, University of Oklahoma School of Law JOINT FAMILY TRUST; INCREASE IN VALUE OF SEPARATE PROPERTY Marriage of Murphy, 2010 OK CIV APP 1, ___ P.3d ___(cert applied for and withdrawn; the parties apparently settled)

Three years later, the husband and wife decided to refinance Tract 1. As required by the lenders, the Co-Trustees of the Family Trust executed a warranty deed conveying only Tract 1 to themselves, as joint tenants with rights of survivorship.

That same day, after they executed the loan documents and obtained the funds, they re-conveyed Tract 1 back to the Family Trust.

The trial court, relying on the second conveyance back to the family trust, determined that Tract 1 was marital property, as well as Tract 2. The wife appealed on this issue and the appellate panel affirmed, albeit on a different theory.

These cases are the published

This case involves the marital home located on a six acre tract (Tract 1) and an adjoining nine acre tract (Tract 2), decases decided in 2010 and not nominated in the opinion The court found two included in the Recent as Richland Road. The Supreme Court cases Developments article on Page 1. home was the wife’s septo be particularly inarate property as a result structive. First in Manof a divorce from her first hart v. Manhart, 1986 husband. Soon after the OK 12, 725 P.2d 1234, marriage, the parties, as trustors, executed a trust, the court held that 43 O.S.§§ 204 and 205 allow prepared by an attorney, entitled the “Michael O. spouses to contract with each other and alter their Murphy and Kyong S. Murphy Family Trust,” which legal relations as to property by conveying jointly they reserved the power to revoke or amend. They acquired property from the appointed themselves to be the trustees. If either marital estate to the other spouse's separate esdied, the remaining original trustee would become tate. the successor trustee, and upon his or her death, the wife's daughter would become the trustee and “Whether the property remains the the ultimate beneficiary. The husband and wife separate property of the spouse to were the trust's income beneficiaries, for whose whom it is conveyed, depends on primary purpose the trust was expressly created. how the spouses treat the property.

They executed a quit claim deed which conveyed If they jointly use and manage the Tract 1 and Tract 2 to Husband and Wife as coproperty, then it may be considered trustees of the family trust. The husband also ‘jointly acquired.’ The controlling transferred to the Family Trust his separate propfacts in such cases are the time of erty, including a residential property in Bethany, the conveyance in relation to the Oklahoma, a subdivision lot in Oklahoma City, and separation of the spouses, and the a brokerage account. completeness of their separation, especially in regard to their dealings

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concerning the conveyed property.”

In Standefer v. Standefer, 2001 OK 37, 26 P.3d 104, the spouses negotiated a joint settlement to their separate tort claims, sought a joint cash payment and jointly-issued annuities, and deposited their annuity payments to their jointly-held account. The Supreme Court concluded that any separate interest each spouse had in their tort claims had lost its identity as separate property due to the commingling of their settlements.

In the Murphy case the court concluded that the entire marital home (both tracts) were marital property because, following the conveyance to the trust, the parties jointly used and managed the property, in particular they reserved to themselves the right revoke the trust and receive the income from the trust.

The appellate panel characterized the trust as a “joint trust” or “joint revocable trust.” Such trusts, the court noted, are an alternative estate planning technique which have become popular in common-law property states because they avoid probate and the need to sever jointly owned assets into separate trusts for each spouse.

The panel found that the case which most closely resembles this one is Bartlett v. Bartlett, 2006 OK CIV APP 112, 144 P.3d 173.

That case involved a transfer of a husband's separate property to his and his wife's separate revocable trusts. In that case, the husband argued the property remained separate because he had created the separate trusts solely to reduce or avoid paying estate taxes.

The court held that “[i]n determining whether placing an asset in joint tenancy for the purpose of avoiding estate taxes rebuts the gift presumption, the trial court must consider whether the donor had an intent to transfer a beneficial interest in the property before death.” Considering the husband's transfers, the court in the Bartlett case, found that it was

necessary that he give part of his separate property to make each trust nearly equal “in order to receive the benefit of his tax planning measures.” The Bartlett court then distinguished the purpose of avoiding estate taxes from the joint ownership required by the bank in Larman v. Larman, 1999 OK 83, 991 P.2d 536, finding “the joint ownership is required by the parties themselves, because they hoped to benefit from it on their deaths.” The Bartlett court determined there was no collateral purpose to the gift.

In Murphy, the wife's intent to transfer a beneficial interest in the marital home “before death” was established by her conveyance of that property into a joint trust with a single trust estate comprised of the parties' separate and jointly acquired property for which she and her husband were the income beneficiaries during their lifetimes. Based on the parties' transfer of both Tract 1 and Tract 2 into the joint trust, and all the benefits they received from its creation, the panel concluded that the conveyances into the Family Trust was the functional equivalent of a transfer into joint tenancy. Therefore the trial court's classification of the entire Richland Road property as marital was not clearly against the weight of the evidence.

The husband had also appealed, arguing that the trial court’s valuation of the home was against the weight of the evidence. As is the case with most such arguments, the appellate panel found that there was conflicting evidence in the record. Therefore the trial court’s determination of the question of fact had to be affirmed.

In addition, the husband appealed the trial court’s failure to conclude that the increase in the value of the wife’s separate property liquor store was marital. The appellate panel affirmed the trial court. In order to classify any increase in the value of separate property as marital, the non-owning spouse must show: 1.

The value of the property at the time of mar-

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riage; 2. The value at time of separation; and 3. The marital cause of the increase, either labor or funds. In this case there was no evidence as to the value of the liquor store at the beginning of the marriage and therefore the trial court had to be affirmed.

The case is important for its conclusion concerning the use of family trusts. It also raises clear ethical questions for estate planners. It appears that attorneys engaging in estate planning should clearly explain to the married couple what is likely to happen to the property should the parties divorce. I expect that if married couples were aware of the consequences of divorce, as well as death, they might well not choose this particular estate planning device.

TERMINATION OF SUPPORT WITH MULTIPLE CHILDREN Ward v. Ward, 2010 OK CIV APP 13, ___ P.3d ___ The parties’ divorce decree awarded the mother custody of the three children and required the father to pay $1750 per month as "reasonable" child support until the age of majority, or until further order of the court.

When the oldest child graduated from high school in May 2002, the father reduced his child support payment to $1,200 per month and further reduced his child support payment to $600 per month beginning in June 2004 after the next oldest child graduated. In late 2006, the mother contacted the Department of Human Services to obtain assistance in collecting unpaid child support. Soon thereafter, the father filed a motion to modify requesting that his child support be reduced because his two oldest children had reached majority and graduated from high school. The mother responded by filing an application for a contempt citation, alleging that he had failed to pay more than $50,000 in child support, medical bills and insurance. He denied that he was in contempt, asserting that he had a right to reduce

child support, and, in any event, the mother's actions were barred by laches.

The trial court found that the support order was not automatically reduced as each of the children reached majority. It sustained the father’s motion to modify and set support at $1002.80 for the remaining child. The trial court also found the father in contempt but deferred sentencing and required him to submit a plan pay off the arrearages. The father appealed.

The first question the court faced was whether the appeal was premature since the court deferred sentencing for the contempt. Generally, a contempt order which defers sentencing is not an appealable order. First Nat'l Bank & Trust Co. of Ada v. Arles, 1991 OK 78, 816 P.2d 537.

However, in that case, the court held that because the appellant sought relief prohibiting enforcement of a trial court order, it would recast the appeal as an original proceeding seeking a writ of prohibition. The Court of Civil Appeals has the same power. See 20 O.S. §30.1. Therefore the appellate panel recast the proceedings as one seeking a writ of prohibition and, by denying the writ, affirmed the trial court.

When the parties divorced the Child Support Guidelines provided that: A child support order shall not be construed to be a per child order unless specified by the district or administrative court in the order.

Child support is not automatically modified in a child support order which provides for more than one child when one of those children reaches majority or is not otherwise entitled to support pursuant to the support order; however, such circumstance shall constitute a material change in circumstances. See

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43 O.S. §118(E)(16)(c) [now found at 43 O.S. §118I(C)].

This section, according to the panel, clearly indicates that child support is not automatically modified as each child reaches majority. A parent who is paying child support for multiple children may not unilaterally reduce his or her child support payment as each child reaches majority, unless the divorce decree so provides. Therefore a party seeking to reduce child support because one or more of the children have reached majority must request a modification hearing. [Note that the current provision provides that child support ceases automatically when the last child ages out.

This provision was not in the previous version.]

The reasons for not allowing a per child reduction are that: 1. A child support award for multiple children cannot be reduced on a per child basis when a child reaches majority because the guidelines do not calculate child support for multiple children as a multiple of the guideline amount for one child. Therefore, a child support award for three children cannot be reduced by onethird when one of the children reaches majority.

2. Every modification of child support must be based upon the parents' incomes at the time modification is sought. In this case the trial court's modification order set the father's child support obligation at $1,002.80, an amount far greater than one-third of the original decree amount.

3. Every modification is within the sound discretion of the trial court. The fact that a child has reached majority is simply one factor, although a compelling one, which the trial court must consider in granting or denying modification and in setting the amount of an award. See Kerby v. Kerby, 2002 OK 91, 60 P.3d 1038.

The Father also argued that the provision regarding per child reductions in §118 is subject to former subsection § 118(E)(21) [now found at §118D(F)], which provides that: The court, to the extent reasonably possible, shall make provision in an order for prospective adjustment of support to address any foreseen changes including, but not limited to, changes in medical insurance, child care expenses, medical expenses, [and] extraordinary costs. . . .

This section, he argued, indicates that aging out is a foreseen change that should have been provided for in the decree, and therefore should be implicitly assumed to be part of the decree.

The appellate panel disagreed. It noted that statutes should be harmonized whenever possible. It found that the only reasonable construction of the statutes is that the term "foreseen changes" in the old §118(E)(21) does not include a child reaching majority, a circumstance specifically addressed by former §118(19) and §118(E)(16)(c).

ADOPTION WITHOUT CONSENT Adoption of M.A.R., 2009 OK CIV APP 103, ___P.3d ___ The mother and step-father sought to adopt the children, M.A.R. and C.A.R. without the consent of the biological father. filed, They argued that the adoption should proceed without the consent of the father because he had willfully failed to contribute to the children’s support in substantial compliance with the terms of the divorce decree, and he had failed to establish and/or maintain a substantial and positive relationship with the children for a period of 12 consecutive months out of the last 14 preceding the filing of the petition for adoption. The statutes in effect at the time See 10 O.S.2001 §§ 7505-4.2(B)(1); 7505-4.2(H). The

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trial court found that the father’s consent was not necessary and the court of civil appeals reversed.

With regard to the failure to pay child support, the panel found that in three of the fourteen months the father had paid a sufficient amount of support so that there was no 12 month consecutive period of non-support. .

First, in April 2007, Father made a child support payment of $369. Although this payment was $64 less than the $433 per month required at this time, the panel we found that it was in substantial compliance with the child support order pursuant to 10 O.S.2001 § 7505-4.2(B)(1), taking into account the strict construction that is required of adoption statutes. See e.g., the Matter of the Adoption of V.A.J., 1983 OK 23, ¶ 6, 660 P.2d 139, 141.

Second, in March 2007, the father made a child support payment of $1,599, almost four times the monthly amount of $433 required by the child support order.

Third, during January 2007, there was no clear and convincing evidence that the father had any financial ability to pay child support or that he incapacitated himself in order to avoid

the duty of paying child support because he was incarcerated. The mother and step-father failed to prove by clear and convincing evidence that the father had any income other than his prison pay. See Adoption of D.L.A., 2003 OK CIV APP 7, 62 P.3d 796.

With regard to the failure to exercise visitation the father claimed that he was denied the opportunity to establish and/or maintain a substantial and positive relationship with the children because of the actions of the mother and step-father. He argued that he had filed a motion to enforce visitation rights and this constituted a sufficient legal action that would show that he had attempted to maintain a substantial and positive relationship with his children.

The appellate panel agreed with him, noting by quoting from the transcript that his motion was sustained and that he did indeed exercise visitation for some weeks following the sustaining of his motion.

This appears to be a relatively straight forward case strictly applying the Adoption Code to ensure that there is clear and convincing evidence before a child is adopted without the consent of the biological parent.

What’s Up With the Practice Manual We’ve all been getting questions from membership about when the updated practice manual will be available for purchase. The practice manual is a great resource for the membership, but it doesn’t do you much good if it doesn’t stay current. To that end, we have been working on transforming the practice manual you are used to (the CD’s and 3-ring binders) into an online resource. The advantage to this is that the practice manual can be updated each month, and new forms can be added as we receive them so you will have all of the current law at your fingertips at all times.

As with most things electronic, it’s taken longer than we thought it would. We had to update the version on the CD’s, then we had to convert all of the documents to .html (the language the web uses), then we had to correct all the formatting errors the conversion caused.

Because the process has taken so long, we have made a temporary CD with the updates for those of you who have purchased an update. The OBA has the master CD and is making copies to send out to subscribers. We have stopped taking orders for updates until we get the online version up and running. As soon as it is available, and I hope that will be VERY SOON, we will let you know.

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THE HIDDEN LAW: THE UNPUBLISHED OPINIONS OF THE OKLAHOMA COURT OF CIVIL APPEALS late court must render, or cause to be rendered, that judgment which in its opinion the trial court should have rendered. A decree need not rest upon uncontradicted evidence. It is not fatal to the validity of an equity decision if, on the basis of the evidence presented, he appellate divorce case exists primarily in the chancellor might have been equally unpublished opinions of the Court of Civil Apcorrect in reaching a conclusion differpeals. This review of unpublished family law ent from that which he actually did. If cases from the Court of Civil Appeals covers the time the result is correct, the judgment is not from the September 1, 2008 until the court vacation vulnerable to reversal because the beginning on August 1, 2009. Copies of the cases wrong reason was given for the decicited in this paper may be obtained at: sion or because the trial court considered an immaterial issue or made an http://oklegal.onenet.net/sample.basic.html. erroneous finding of fact. We are not bound either During this last year by the reasonthe Court of Civil Aping or the findpeals decided a total 87 AN ANALYSIS OF UNPUBLISHED ings of the unpublished, non-juveFAMILY LAW CASES trial court. nile, non-adoption famiFROM THE COURT OF CIVIL APPEALS: Whenever the ly law cases, compared 2008-2009 law and the to 82 the previous year. facts warrant, we may affirm This represents the the judgment if it is sustainable on any third year of a significant decline in appellate decisions rational theory and the ultimate concluand, indeed is one of the lowest number of cases ever sion reached below is legally correct. decided by the Court of Civil Appeals.

Unless the decision is found to be against the clear weight of the eviAttorneys appealing a divorce case must always dence, the appellate court must indulge keep in mind the standard of review for equity cases. in the presumption that it is correct.

The complete standard is set forth in the case of Carpenter v. Carpenter, 1982 OK 38, 645 P.2d 476: There are two effects of this standard of review.

First, appellees should be assiduous in advancing any theory that will support the trial court's judgment. The [Divorce] contests are of equitable cogtheory need not have been presented to the trial court, nizance. The court may exercise conso long as it supports the lower court's ruling. This tinuing jurisdiction of disputed claims. aspect of the standard of review is most often seen in On appeal, the trial court's disposition custody and visitation cases. However, it does occur is reviewed by the standards applicable in child support cases also. to chancery cases. The court's deciThe second aspect of the standard of review occurs sion is presumed to include a finding most often in alimony, child support, and some properfavorable to the successful party upon ty cases where the appellate court will enter the order every fact necessary to support it. that should have been entered, although it can also be While an appellate court may and will used in custody/visitation cases. examine and weigh the evidence, the findings and decree of the trial court It should also be noted that the appellant has the cannot be disturbed unless found to be obligation to provide the appellate court with the inforagainst the clear weight of the evimation it needs in order to decide the case. There are dence. Whenever possible, an appel-

By Robert G. Spector, Glenn R. Watson Chair and Centennial Professor of Law, University of Oklahoma School of Law

T

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cases every year where the appellant fails to provide either a transcript or a narrative statement. If one is not going to be provided, an appeal should never be attempted. For this year’s examples, see Farnik v.

Farnik, #104,560 (OKC 2008)(cert.den.)(“Absent a transcript, we will not speculate about the trial court's basis for its reduction of the amount of requested attorneys fees, but will merely note it was within the trial court's discretion to do so in fulfillment of its duty to fix a reasonable amount of attorney fees to be awarded in a divorce proceeding upon the balancing of judicial equities.”); Marriage of Little, #105,077 (OKC 2008)(“Because Mother has not provided us with a record which contains all of the evidence bearing on the custody decision, we cannot conclude the trial court's decision is clearly contrary to the weight of the evidence. Therefore, we affirm the trial court's decision.”); DHS v. Porter, #105,384 (OKC 2008)(“Custodian's petition in error indicates no stenographic record was made of the hearing and she did not avail herself of the procedure in Okla.Sup.Ct.R. 1.30, 12 O.S. 2001, Ch. 15, App. 1, for submitting a narrative statement of the evidence in the record on appeal.”); Marriage of Erwin, #104,892 (Tulsa 2009); Holt v. Holt, #105,421 (Tulsa 2009)(“There is neither a transcript nor, in the alternative, a narrative statement in compliance with Rule 1.30 to indicate that Husband tried to introduce any additional witnesses or evidentiary material. Because the statements submitted on appeal do not comply with Rule 1.30 and are therefore not properly before us, we cannot consider them in our review of this case.”)

CUSTODY AND VISITATION Custody and visitation cases constitute one of the two major case categories that dominate the family law docket of the appellate panels. There was a decrease reduction in custody and visitation cases this year, down to 25 cases.

on custody is very remote. This year’s cases include Jefferson v. Lawson, #104,327 (Tulsa 2008)(custody to husband; “We will defer to the trial court to assess the credibility and demeanor of the parties.”) Taylor v.

Taylor, #104,814 (Tulsa 2008)(“In order to show that the trial court abused its discretion in awarding custody to Wife, it is not enough for Husband to show that the evidence at trial could have supported a custody award in his favor.”)

Only one reversal occurred this year and it was on procedural grounds.

In McComb v. Tavares, #105,069 (Tulsa 2008), the question was whether the trial court appropriately took judicial notice of earlier proceedings between the same parties. Since the record was ambiguous, a reversal was required because parties are entitled to notice on the propriety of taking judicial notice. See 12 O.S. §2203(B).

JOINT CUSTODY The Original Joint Custody Order

The Court of Civil Appeals has a long standing view that, absent an agreement between the parties, an award of joint custody should not be contemplated by the trial court. See e.g., Berry v. Berry, #105,765 (OKC 2009)(reversing trial court’s award of joint custody with a three-month rotation of the child’s physical residence when not requested by either party). However that may depend on the type of joint custody. In Marriage of Moreno, #104,567 (Tulsa 2008), the trial court awarded the parents joint legal custody, at the mother’s request, but gave the father final decision making authority when the parents disagreed. The appellate panel rejected the mother’s appeal. First because she requested joint custody and second because the record supported making the father the final decision maker. Other than the name joint custody, this case is really the equivalent of sole custody with visitation.

ORIGINAL CUSTODY DETERMINATION Modification of a Joint Custody Plan A number of cases involved an appeal from an original custody award, including those custody determinations following the termination of joint custody.

This is continues to be an issue that practically always results in an affirmance. Appellate panels have, for many years, given great deference to the trial court’s decision in custody matters. There were very few appeals this year that fell into this category. Perhaps attorneys are beginning to understand that the chances of obtaining a reversal of the trial court’s decision

A joint custody plan can be modified upon the showing that it is in the child’s best interest to do so, See Marriage of Petree, #106,178 (OKC 2009)(cert. pending), where the court modified the joint custody plan to provide that the oldest child’s primary physical residence should be with the mother and the youngest with the father, based on the children’s wishes.

One case dealt with the relationship between relocation and modification of custody. In Marriage of 31

Petree, #106,178 (OKC 2009)(cert. pending), the trial court modified the joint custody plan based on the mother’s move from Madill to Youkon. The mother argued that because the father had failed to object in a timely manner to the move, he could not file to modify the joint custody plan based on the move. The trial court and the appellate panel disagreed. It found there is no statutory prohibition against a trial court's consideration of the authorized relocation and its effect upon the children's best interests in a subsequently filed motion to modify. Therefore the panel declined to hold that a nonobjecting custodial parent forfeits his legal right to claim the relocation as a factor in a subsequently filed custody modification proceeding simply because the other custodial parent complied with the relocation statute.

refusal to terminate joint custody was affirmed on appeal. The panel noted that: “In this case, the record contains evidence reflective of the parties' ability to communicate, agree and/or cooperate with each other. The testimony of the parties at the modification hearing reveals the parties' relationship is fairly amicable and they have apparently communicated effectively concerning the welfare of the child.” The record reflected that the child was doing well in school (making As and Bs) and participating in extracurricular activities. The panel concluded that evidence supported a finding that joint custody was working, was in the child's best interests, and should be maintained. It found there was no evidence demonstrating how termination of joint custody would serve the child's best interests and therefore the mother failed to show a material and substantial change in circumstances to justify termination of the joint custody arrangement.

Modifications Into and Out of Joint Custody A joint custody plan can be terminated when it is demonstrated that it is not working because the parents cannot cooperate, See e.g., Hendon v. Hendon, #104,644 (OKC 2008)(cert.den.)(trial court reversed for not terminating joint custody when parents cannot cooperate.); Marriage of O’Brien, #104,924 (Tulsa 2009)(trial court’s termination of joint custody affirmed based on the failure of parent’s to cooperate); Marriage of Forrest, #105,748 (OKC 2009)(joint custody terminated even though father thought it could work with a parenting coordinator; no error not to appoint a parenting coordinator).

However, the court is not required to terminate the custody plan if the evidence shows that the parents can cooperate and the child’s best interests require the plan to continue. See Marriage of Craig, #105,371 (OKC 2009). The mother requested a termination of joint custody due to the father’s alleged inappropriate behavior toward her daughters of a previous marriage. When DHS found that there had been no abusive behavior, and there was no evidence that the parents could not cooperate, it was not error for the trial court to continue the joint custody arrangement.

The same thing occurred in Etter v. Etter, #106,286 (OKC 2009)(cert. pending). Although the parties’ joint custody plan provided that the child’s physical residence was to be with the father, the child had been living for the last five years with the grandmother.

When communications broke down between the mother and the grandmother, the mother filed to terminate the joint custody arrangement.

However, prior to her filing the child moved from the grandmother’s house to the father’s. The trial court’s

After a joint custody plan is terminated a court is to decide custody as if no prior custody determination was ever made. Reversals here are as uncommon as they are in the original custody determination. See e.g., Nunnery v. O’Dell, #105,303 (OKC 2008)(“The evidence revealed the Father is a handson, nurturing, and involved kind of parent. He testified to their daily routine such as laying out clothes for the child, reminding about teethbrushing, preparing breakfast, farm chores, fishing, and family gettogethers, including seeing a cousin who is a year older. We cannot say that the trial court's determination that the child's best interests will be better served with sole custody placed in Father is against the clear weight of the evidence.”); Major v. Miller, #105,470 (Tulsa 2009)(The district court was in the best position to observe the witnesses and their demeanor during the hearing.)

RELOCATION There was only one unpublished case concerning relocation problems.

In Marriage of O’Brien, #104,924 (Tulsa 2009),the mother wished to relocate because her new husband was being transferred by the military to Japan. The trial court after considering all the factors in 43 O.S. §112.3 allowed the move.

The appellate panel affirmed because once the trial court considers all the factors, its decision will be upheld unless it is an abuse of discretion.

MODIFICATION OF CUSTODY Most modification cases were affirmed so long as the trial court appropriately applied the standard of 32

Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482. If the trial court indicates the basis of its decision to modify custody and attempts to apply the Gibbons standard, appellate courts will practically always affirm.

The following cases affirmed the trial court: Marriage of Flynn, #104,902 (Tulsa 2009), (father failed to show how mother’s frequent moves, changes of employment and living arrangements directly affected the children); Richards v. Richards, #105,662 (Tulsa 2009)(affirming modification of custody because mother had unreasonably interfered with father’s visitation).

The reversals were occasioned by glaring errors on the part of the trial court, procedural problems, or a less than complete appellate record because appellee never filed a brief. The glaring errors might not be so apparent were there complete briefs in the case. For example, in Stubblefield v. Stubblefield, #105,510 (Tulsa 2009)(appellant’s only brief) the court noted that according to the father’s brief, he presented uncontroverted evidence that Mother had failed to ensure that the child was prepared and participated in school. Allegedly she did not properly cloth him, sent him to school without his reading glasses, and did not address his ADHD by medicine or counseling. According to school records and the child's principal, these failures directly resulted in the child failing first grade. The trial court's conclusion that a primary reason for the child's failing was his immaturity was clearly contrary to the evidence and based upon the trial court's general opinion about "September" children. The panel noted that according to the father’s brief he presented compelling evidence that the mother failed to provide the child with a clean and healthy home environment, failed to meet the child's personal hygiene and medical needs, and failed to provide the mental and emotional environment necessary for a special needs child. The panel held that the fact that the mother and her husband were "folks of meager means" is not an impediment to providing a proper home environment nor was it an excuse for failing to do so, or for failing to send a child to school properly cleaned and dressed. Whether the appellate panel would have been as harsh had there been complete briefing is unclear. See also Hamel v. Hoffman, #105,367 (Tulsa 2009)(appellant’s only brief) the court’s refusal to modify was reversed because mother’s brief was reasonably supportive of the argument that the trial court ignored a well-founded expression of preference by children over the age of twelve.

VISITATION

Cases in the past have indicated that visitation issues will also usually be affirmed on appeal. The exceptions were situations where the trial court restricts visitation without clearly indicating why the best interests of the child requires it, or if the judge goes beyond what is necessary to resolve the case. See Marriage of Walter, #105,649 (OKC 2009). “Husband provides very little authority in support of the proposition that the trial court abused its discretion in its failure to award him overnight visitation on Sunday evenings. Husband would have us ignore the fact he was awarded an additional evening of overnight visitation to him during the week (possibly in lieu of awarding the overnight on Sunday).” In the same case the husband complained of a provision in the divorce decree, which restrained from sleeping with or near the children during the time he had the children in his care. The panel found the court was within its discretion because there was evidence of domestic violence (primarily between the parties, but also at least one incident directed at one of the children). The children’s therapist testified that the older child (who was tenyearsold at that time) had been in counseling for anxiety and boundary issues as a result of the trauma she experienced upon witnessing the domestic violence between the parties. The counselor testified that children with boundary issues tend to be more likely to act out sexually. Additionally, evidence was presented to the effect that on one occasion, the husband refused to leave the room while the tenyearold child was changing clothes.

THIRD-PARTY PROBLEMS Modification of Third-Party Custody

Third party custody cases made reappearance on the appellate docket this year. All of them involved the question of whether the conditions which lead to the creation of the guardianship had been cured. If these cases are reflective of what is going on at the trial level, it appears as though trial courts are taking a restrictive view of when the conditions have been corrected. A good example of this is Guardianship of NAG, #105,411 (Tulsa 2009). The grandparents obtained guardianship of the children after their father’s death, the mother having disappeared after the parties’ divorce. Upon the mother finding out about the father’s death, she sought and obtained visitation. After a few months she sought to terminate 33

the guardianship. The trial court refused to do so and the appellate panel affirmed. It noted that although the mother argued that she has exercised her court ordered visitation, this visitation constitutes of less than two dozen days, with the longest visitation being for nine days. She had not been responsible for the day-to-day activities of child rearing, such as taking the children to school or counseling or caring for the minor children when they are ill. Nor did the record reflect that the mother made diligent inquiry of, or plans for, the children's needs, educationally, emotionally, or medically. Considering her lack of presence in the children's lives for many years, and the failure to present meaningful plans for the care and emotional counseling that will result from the children's forced departure from one known environment to an unfamiliar one, including the forced cohabitation with other nonrelatives, the panel found the trial court did not err in finding it was not in the children's best interest at this time to terminate the guardianship. In addition she still owed over $26,000 in back child support.

This case is a very good example of how the new third-party custody modification proceeding should work. In this case the children had clearly been integrated into the grandparent’s household. Therefore with the emphasis on the child’s stability, the exception noted in Carter v. Carter (discussed in recent developments) should apply.

For other cases, all where the court denied the parent’s motion to terminate the third-party custody, see Guardianship of MKR, #105,111 (Tulsa 2008), where the trial court determined that while mother’s situation had improved for four months, it was not sufficient to establish by clear and convincing evidence that the conditions that lead to the creation of the guardianship no longer existed. Where the evidence is in conflict the trial court is authorized to determine who to believe. The same was true in Guardianship of T.C.M., #105,507 (OKC 2009) where the after the 17-year-old child ran away to live with his grandmother the father consented to the grandmother’s guardianship on the condition she not seek child support from him. One month later DHS, on behalf of the grandmother sought child support.

The father then filed a motion to terminate the guardianship. However, he presented no real evidence at trial and therefore the trial court’s refusal to terminate the guardianship was affirmed.

Grandparent Visitation

An interesting case concerning grandparent visitation is Marriage of Cooper, #104,686 (OKC 2008) (cert denied; opinion ordered depublished). The trial court ordered visitation to the grandparent over the objection of both parents who are divorced. The panel reversed. It noted that in Neal v. Lee, 2000 OK 90, 14 P.3d 547, the court said that grandparent visitation over the objection of fit parents could not be tolerated absent harm or a threat of harm. The amended version of the grandparent visitation statute provides that visitation can be ordered in cases of harm or potential harm. The trial court relied on the term “potential harm” to order visitation to the grandmother in this case. The panel found that there was a considerable difference between “potential for harm” and a “threat of harm” and therefore reversed.

It should be noted that although the Supreme Court approved the result of the decision of the Court of Civil Appeals, it ordered the opinion withdrawn. Therefore it appears that the reasoning of the appellate panel should not be taken too seriously.

Enforcement.

In Sutton v. Sutton, #104,193 (Tulsa 2008), the trial court held the mother in contempt for failing to allow visitation without giving her opportunity to present evidence concerning why she withheld visitation. The appellate panel reversed. It noted that 43 O.S. 112(D)(1) provides that, "except for good cause shown; a pattern of failure to allow court ordered visitation may be determined to be contrary to the best interests of the child and as such may be good grounds for modification of the child custody order."

The trial court curtailed the mother's evidence and refused to consider her reasons for denying visitation, stating that they were irrelevant. It made no finding as to whether there was "good cause" for withholding visitation and therefor reversal was required.

Enforcement of visitation proceedings under 43 O.S. §111.C provide that the prevailing party shall be awarded attorney fees. This is very different than proceedings under §110 where entitlement to fees depends on a balancing of the equities and not on prevailing party. See e.g., White v. White, #104,809 (Tulsa 2008) (trial court reversed for not utilizing prevailing party standard to award fees in visitation enforcement action).

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CHILD SUPPORT Any thought expressed in previous years concerning the death of the child support appeal was clearly premature. The last two years have witnessed its reemergence. The number of appeals more than doubled this year from 10 to 25. They, no doubt, will increase greatly with the new Child Support Guidelines in effect.

JURISDICTIONAL ISSUES In Turnbull v. Turnbull, #105,523 (OKC 2009)(cert.den.), the panel affirmed the rule that UIFSA’s continuing jurisdiction concerns to the subject matter jurisdiction of the court and therefore cannot be waived by consent. The panel also correctly noted that a state can have jurisdiction to enforce an existing order without have jurisdiction to modify the order.

DETERMINING THE AMOUNT OF CHILD SUPPORT The determination of income

Normally the determination of income is a decision within the trial court’s discretion when the facts are conflicting. See e.g., Gabriel v. Gabriel, #105,201 (OKC 2009) (whether husband’s sale of hay and grass produced any income); Marriage of Walter, #105,649 (OKC 2009) (no error not to allow father to deduct over $25,000 for supplies for his solely owned company when he could not justify the amount).

However, reversals for abuse of discretion do occur.

For example, where the record clearly indicated that the father earned more than $3500 per month it was error for the trial court to use that figure as the father’s income. Marriage of Erwin, #104,892 (Tulsa 2009).

In other cases concerning income the court in King v. King, #105,216 (Tulsa 2009),reversed the trial court and reaffirmed its decision in Gambill v. Gambill, 2006 OK CIV APP 73, 137 P.3d 685 that adoption assistance payments are not income for child support purposes and therefore it was error for the trial court to include it. The panel also referenced the new Child Support Guidelines that specifically exclude adoption assistance payments from income.

There was one case this year dealing with imputing income. In Marriage of Forrest, #105,748 (OKC 2009), the father argued that the court should impute as income to the mother the amount of money she

could make as a Director of Patient Registration in a hospital, a position for which she was well, trained and qualified for employment. The mother testified that she obtained a position as a nurse making $17.57 an hour because that is “where her heart is.” The appellate panel found this to be a sufficient explanation for the trial court’s failure to impute income to the mother.

Deductions, Adjustments and Shared Parenting Defendant entered into an agreement in his divorce case obligating him to pay $2000 in child support the day before the merits hearing on a parentage case involving a different child. The trial court’s refusal to allow him to deduct the $2000 was affirmed on appeal, although the panel did not foreclose a future modification based on actual payment of the $2000 per month. Berman v. White, #105,961 (OKC 2009).

The courts continue to adhere to the standard for shared parenting set forth in Williamson v. Williamson, 2005 OK 6, 107 P.3d 589, that the shared parenting adjustment is appropriate when ordered by the court or agreed to by the parties. In Adams v. Adams, #103,316 (Tulsa 2008) (cert.den.), the shared parenting was ordered by the court so the adjustment was appropriate.

WEALTHY FAMILIES In Marriage of Wright, #105,353 (OKC 2009) (cert. pending), the trial court imputed to the husband, a physician, monthly income of $158,000.00, and directed him to pay $9,000.00 per month child support.

The appellate panel affirmed noting that in cases exceeding the tables there is no fixed method to determine the "additional amount." Rather, the panel said, courts may consider various factors, including the ability to pay, the children's reasonable needs, living expenses, predivorce standard of living, affluent lifestyle, costs of private school, lessons, and the like.

In this case given the award of the marital residence to the husband under the parties antenuptial agreement, and the wife's need to obtain and maintain alternate housing for her and the parties' children, the panel could not say the trial court erred in setting child support.

MEDICAL AND CHILD CARE EXPENSES

Several cases raised issues involving medical and day expenses. In Marriage of Erwin, #104,892 (Tulsa 2009), the mother was assigned 75% of the day care expenses even though she earned only 36% of the 35

total gross income. The appellate panel reversed because the trial court did not indicate any reasons for its decision. In Chowning v. Chowning, #105,033 (OKC 2008), the trial court was reversed for refusing to order father to pay day care expenses. It erred when it determined that the expenses were incurred before the father was ordered to pay them since the record clearly demonstrated the contrary.

In order to collect for nonpayment of medical and other expenses the obligee must produce evidence that the expenses were incurred and that a request for repayment was made. Willibanks v. Willibanks, #104,738 (Tulsa 2009(cert. den). However an actual receipt is not required. Marriage of Walter, #105,649 (OKC 2009).

MODIFICATION OF CHILD SUPPORT In Marriage of Forrest, #105,748 (OKC 2009), the court found, in accordance with a now-long line of cases that a substantial increase income of the father (from $0 to $225,000) justified a substantial increase in child support. However, the trial court was reversed for failing to make the change in child support retroactive to the date the motion to modify was filed. Modifications of child support must relate back to the date of the filing of the modification, unless the trial court determines that the change of circumstances occurred at a later date. Failure of the trial court to do so will result in a reversal by the appellate court.

Equitable Defenses There were a number of cases discussing equitable defenses this year. In Love v. Spiva #104,449 (Tulsa 2008), the mother’s motions to modify child support in 1996 and 2001 were granted but the minute orders were never reduced to judgments. When, DHS on her behalf, sought to have the modifications enforced the father pleaded laches. The trial court agreed and the appellate panel reversed. It noted that the orders were enforceable when pronounced without being reduced to judgment. In the present case, the trial court attempted to reconstruct the prior judgments without an evidentiary hearing by using a value for the father's income which may or may not have been supported by the evidence. After the trial court issued this order, DHS apparently interjected the affirmative defense of laches on the father's behalf. The father did not participate in the proceedings. The trial court then held that laches barred the mother from pursuing her arrearage claim. The appellate panel held that the trial court's denial of the mother's arrearage claim based on the doctrine of laches was premature because the trial court failed to follow the procedures set forth in Depuy v. Hoeme, 1989 OK 42, 775 P.2d 1339 for memorializing the two prior judgments. The trial court is required to first memorialize the judgments to determine the amount of arrearage, if any. The trial court may then address the issue of how and whether the arrearage can be collected based upon the facts and evidence.

ENFORCEMENT Contempt.

In Marriage of Smith, #105,246 (Tulsa 2009) (originally marked for publication and then withdrawn), the appellate panel held that a defendant in a contempt proceeding must be advised of the right to counsel and that a failure to do so will lead to a reversal. Unfortunately it is not clear from the opinion whether the case involved remedial or punitive contempt and perhaps that was why it was ultimately withdrawn from publication.

In Turnbull v. Turnbull, #105,523 (OKC 2009) (cert.den.), the trial court determined that the father’s failure to pay his child support was due to economic problems beyond his control and that therefore contempt did not lie.

Another case discussing equitable defenses is Payne v. Payne, #104,712 (OKC 2009) where the appellate panel concluded that the trial court erred in determining that as a matter of law, father’s child support obligation ended when the child went to live with the father with no change in the custody decree.

It also erred in granting the father’s demurrer to the mother’s evidence without taking any evidence from the father on whether the mother’s delay in instituting enforcement proceeding was prejudicial to the father.

See also Willibanks v. Willibanks, #104,738 (Tulsa 2009) (cert.den.)(where husband’s actions contributed to the delay in seeking payment he cannot invoke equitable defenses); Honeysuckle and DHS v. Huneysuckle, #105,533 (Tulsa 2009)(where the evidence is in conflict regarding whether the mother had agreed to waive back child support, the ALJ’s decision of no waiver must be upheld). Finally, In DHS v. Manley, #105,011 (OKC 2009) (opinion on rehearing) (cert den. Hargrave, Kauger, Colbert, Rief dissent), the court rejected the father’s claim of laches because, as in Hedges v. Hedges, 2002 OK 92, 8, 66 P.3d 364, 36

all he could show is that mother’s delay in enforcing the child support order meant he owed more money.

The court also rejected the argument that he paid his child support by alternative payments because there was no evidence that the parties had agreed that these payments should be a credit against child support payments.

There was one case where an equitable defense was allowed. In Kennedy v. Kennedy, #104,735 (Tulsa 2009) (cert granted then withdrawn as improvidently granted). The father did not pay his support beginning in 1994 because he claimed the mother had insisted that he no longer do so because his support was unnecessary. She also during this period denied him visitation. The trial court found that the combination of the delay in seeking enforcement of the support coupled with the father’s acquiescence in the visitation denial equitably estopped the mother from pursuing the child support arrearages. The appellate panel affirmed holding that the father had demonstrated prejudice from the mother’s actions sufficient to support his contention that she agreed to release him from his child support obligations in exchange for his abandonment of visitation rights. It appears as though nobody correctly analyzed this case. The cases are clear that an agreement whereby the mother abandons support for her child in exchange for a denial of visitation is against public policy. See State Dept. of Human Services ex rel.

K.A.G. v. T.D.G., 1993 OK 126, 861 P.2d 990.

Other Issues In Pryor v. DHS, #104,293 (Tulsa 2008), the father argued that he was entitled to receive credit against his arrearage for payments made directly to the mother by the paternal grandmother even though the payments were not made through the payment registry.

The appellate panel determined that he was entitled to receive some credit. A DHS finance supervisor responsible for recording payments testified that if the mother submitted an affidavit acknowledging receipt of payments not made through the Support Registry, the father would receive credit for those nonRegistry payments. The mother testified that she received approximately $15,000 in nonRegistry payments from the father's mother. Much of that money was for gifts to the child, gifts to the mother, in one instance a loan, and other payments intended to help the mother with her financial situation. The mother also testified that some of the nonRegistry payments made by the father's mother were clearly intended to be for the support of the child. Therefore the father was entitled to some credit against his arrearage.

In Marriage of Meier, #105,815 (Tulsa 2009) the father’s appeal was rejected because he raised no reason why his driver’s license revocation did not comply with the statutory authorization.

PARENTAGE When the mother identified the defendant as the father of her child, DHS brought a paternity action. It was dismissed when two DNA tests were negative.

The mother brought the action on her own and this time the DNA test came up positive. The trial court determination that the defendant was the father based on the third test was sustained. The appellate panel dismissed the father res judicata defense because the action brought by DHS was dismissed before there was a parentage adjudication. Berman v. White, #105,961 (OKC 2009).

PROPERTY Property cases regained their position as the major issue raised on appeal. There were 35 such cases this year. The number of reversals was extremely high, indicating, perhaps, that trial courts are having more difficulty with these issues than any others.

CLASSIFICATION PROBLEMS

While most classification issues are question of law rather than fact, sometimes the issue turns on factual determinations. In those cases the trial court will be affirmed unless there is an abuse of discretion. See Line v. Line, #105,170 (Tulsa 2009)(wife’s contention that the parties had a joint venture with regard to the property prior to marriage rejected by the trial court based on the evidence; affirmed). If the appellate court cannot, on the record, make a determination as to whether the trial court’s classification was correct, it may reverse and remand the case. Marriage of Dahl, #104,915 (Tulsa 2009).

Although it has always been clear, the court in Bowen v. Bowen #104,479 (OKC 2009), noted that property has to exist at the time of the divorce in order for the court to deal with it. Therefore it was error to credit the wife the value of her services to a business that the parties once owned but is no longer in existence.

General Classification In Gibbs v. Gibbs, #104,388 (Tulsa 2009), the trial court erred in including in the marital estate the par37

ties’ house which was purchased by the husband prior to marriage, as well as the husband’s law practice was began prior to marriage. See also Knox v. Knox, #105,318 (OKC 2008), where the trial court was reversed for including wife’s premarital credit card debt in the marital estate; Medina v. Medina, #104,747 (OKC 2008)(error to include wife’s separate property in the marital estate) A very unfortunate classification opinion was Medina v. Medina, # 104,747 (OKC 2008). The husband claimed a marital component in the amount of marital contributions to wife’s separate property. The appellate panel found that the amount of marital funds contributed towards a spouse's separate property, standing alone, does not create a marital interest in the enhanced equity in such property. However, Oklahoma does recognize tracing. It would follow that if the marital contributions to the property increased the equity in the property that equity would be traced to marital contributions and should be marital. Perhaps the problem was in the proof in that the opinion did not indicate whether the marital contributions increased the equity in the property. The appropriate rule was stated by the other Oklahoma City panel. See Myers v. Myers, #105,169 (OKC 2008) where the court stated as follows: “At the time of trial, the balance on the mortgage was approximately $14,000.00, and the home appraised for $39,000.00. This record shows that the value of the home did not increase during the marriage, but the amount of equity in the home did increase by $28,750.00 as a result of mortgage payments made during the marriage. If Husband made those mortgage payments from his separate property, then the increase in equity is his separate property. If the mortgage payments were made from either spouse's earnings during the marriage, then the increase in equity resulted from joint industry and is marital property to be divided in the decree of dissolution”.

In order to for the marital estate to get credit for an increase in the equity in the house there must be some evidence showing what payments were made and the amount that the equity increased. Failure to present such evidence means that the trial court’s decision that the entire house is separate property can be affirmed. Lewis v. Frank, #105,206 (Tulsa 2009).

Degrees and licenses: Hubbard award

In Long v. Long, #104,343 (Tulsa 2008), the panel approved a trial court’s refusal to grant a Hubbard

award. The parties did not dispute that, before the marriage, the husband saved enough money to pay for his education so that he would not have to go into debt during school. The evidence was also clear that the husband worked throughout the marriage and paid the majority of the household expenses whereas the wife's employment history was sporadic. The testimony at trial revealed that the parties shared household duties and chores with the husband doing the majority of the cleaning. The evidence shows that the parties lived frugally during the husband's medical school, internship, and residency. At the time the parties divorced, the wife had improved her earning capacity significantly. Thus, unlike the facts in Hubbard, there was no unjust enrichment to the husband at wife's expense. The panel noted that "restitutionary alimony should be the exception and not the rule."

Other Issues An issue that unfortunately arises from time to time concerns whether the marital home must be marital property. An appellate panel erroneously so ruled in Stevenson v. Stevenson, 1984 OK CIV APP 10, 680 P.2d 642. In Gabriel v. Gabriel, #105,201 (OKC 2009), the court held that Stevenson’s persuasive value is “doubtful at best.” It noted that the supreme court held both in May v. May, 1979 OK 82, 596 P.2d 536, and Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, that separate property retains its status during marriage and only that portion subject to equitable division as a joint spousal interest is the quantifiable, inmarriage increase in the property's value attributable solely to the personal efforts, skills, or expended funds of either spouse and not to appreciation, inflation, or other economic conditions beyond the parties' control.

Transactional Classification Problems Gifts, Loans Commingling and Joint Tenancy Gifts In Gabriel v. Gabriel, #105,201 (OKC 2009) when the couple separated the wife took off her wedding ring and threw it at the husband. He retained the ring after the incident. The appellate panel held that the wife’s actions showed donative intent. Therefore the trial court’s decision to award the ring to the husband was affirmed. In another case, Marriage of Wright, #105,353 (OKC 2009) (cert. pending), the parties antenuptial agreement called for a property distribution according to whose name was on the title. The 38

agreement also provided that the parties could give gifts to each other. When the husband had property, paid for with his separate funds, titled in his wife’s name, she was entitled to the property according to the antenuptial agreement even though the husband argued that the property was in the wife’s name solely to protect assets in case of a malpractice judgment.

Whether money received from the wife’s parents was a gift or a loan is a question of fact for the trial court. When the evidence is in conflict the trial court’s decision as to who to believe will be sustained on appeal. Martin v. Martin, #105,653 (OKC 2009).

Joint Tenancy When money from a separate property account is placed in a joint account and then a check is immediately written for the mortgage payment, the equity in the house resulting from the mortgage payment is separate property. Placing money momentarily in a joint account does not constitute a gift. Bowen v.

Bowen, #104,479 (OKC 2009). However, placing inherited money in an annuity and adding the husband’s name because he was older and would be able to access the money earlier than the wife could without tax penalties does mean that the inheritance has become marital property. Lewis v. Frank, #105,206 (Tulsa 2009).

In Sexton v. Sexton, #105,408 (Tulsa 2009(cert. pending), the husband transferred an inheritance from a separate account to a joint account because the wife pressured and forced him to transfer the account from his individual name to a joint tenancy. According to the husband he did so only "to keep peace at home." The panel held this did not rebut the presumption.

Increase in Value of Separate Property Issues involving an increase in value of separate property often present proof issues. When the evidence is in conflict regarding the source of the increase in value and the amount of the increase, the trial court is the sole judge of who to believe. Bowen v. Bowen, #104,479 (OKC 2009).

Valuation Date of Valuation In Long v. Long, #104,343 (Tulsa 2008), the parties separated in 2004 and the divorce was filed in 2006.

The trial court used the date of the parties’ separation as the date of valuation. The trial court had before it ample evidence that the parties lived mostly separate

lives beginning in at least November 2004. It was at that time that the husband and wife stopped living as a married couple and therefore the trial court was within its discretion to use the date the couple separated.

However see Friend v Friend, #104,763 (Tulsa 2008). The wife also appealed the district court's dates of valuation for the husband's and wife's separate retirement accounts. In the divorce decree, the district court explicitly noted that Husband's 401(k) was valued on the date of separation and that wife's retirement account was valued on the date of the hearing. The record established that on the date of separation, the husband's 401(k) was valued at $892.75 and that the wife had no retirement account as of that date. The evidence also clearly established that the value of Husband's 401 (k) on the date of the hearing was $3,009.85, an amount significantly greater than the value of the account on the date of separation. Although trial courts are given wide latitude to determine the date of valuation for retirement accounts, Thielenhaus v. Thienlenhaus, 1995 OK 5, 16, 890 P.2d 925, 933, the court's reliance on two separate valuation dates was not justified by this record.

General Valuation Issues Normally the trial court’s determination of value will be affirmed on appeal if there is any evidence in the record supporting the court’s determination. Therefore in placing a value on a business the trial court will be affirmed if it considers carefully the different methodologies used by the experts and arrives at a conclusion somewhere in between the two numbers. Ratliff v. Ratliff, #106,367 (OKC 2009) (cert. pending); Wilson v. Wilson, #105,480 (OKC 2009) (cert. pending).

However, the trial courts run into problems when they fail to note the value of the property in the decree.

For example, in Knox v. Knox, #105,318 (OKC 2008), the trial court found two pieces of property had no value and awarded them to the husband and ordered him to pay the debt on the property. However, the failure of the trial court to find the amount of the debt, among other issues, resulted in a reversal and remand of the property division.

Another reversal occurred in Marriage of Erwin, #104,892 (Tulsa 2009), where it was error for the trial court to find that although military pension was marital property, it had zero value.

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DIVISION OF PROPERTY Under normal circumstances if the only issue on appeal is that the trial court did not equitably divide the property, the appellate panel will affirm. See e.g., Anderson v. Anderson, #104,765 (OKC 2008); Thompson v. Thompson, #104,808 (Tulsa 2008); Marriage of Flandermeyer, #104,406 (Tulsa 2009)(cert. pending)(although wife received more property than the husband the trial court tried to award each spouse the property most closely associated with each spouse’s business); McGath v. McGath, #105,420 (Tulsa 2009). Although a court may, in determining a division of property, consider the reasons why a party does or does not want a particular piece of property, the appellate panel refused to extend the doctrine to require the court to do so.

Scruggs v. Scruggs, #105,560 (Tulsa 2009).

However, a trial court errs when it does not address property it knows is there. For example, in Berry v.

Berry, #105,765 (OKC 2009), the decree did not mention the husband’s pension. This required reversal since the wife, at trial, sought an equitable division of the pension. According to the appellate panels, the trial court also has an obligation to address property that it knows is present even though there is no evidence concerning the property. In Duncan v. Duncan, #104,064 (Tulsa 2008), there was sufficient evidence that the wife had a business that existed at the time of the divorce and was being operated by her.

Although the record did not indicate the structure of the business, it was a source of income; it owned assets and used certain marital property for its capital.

Yet, the trial court's order was silent as to its value and disposition. While the wife was correct in that it is the duty of the parties to adequately prove the nature and value of marital assets, it does not follow that because the issues were inadequately proven, the trial court was free to disregard them. The trial court also neglected to determine whether a $3,780.00 ring, which the wife bought for herself was a gift or marital property. As a result the entire property division had to be reversed and remanded.

Another reversal occurred in Friend v. Friend, #104,763 (Tulsa 2008). The trial court’s determination did not explain a $13,560 difference between the husband and wife in allocating student loan debt.

Neither party disputed the fact that the student loan debts incurred by both parties were part of the marital estate. Although the trial court is not required to divide the marital estate equally, it attempted to do that with the sole exception being the assignment of

the student loan debt. The panel concluded that therefore assignment of student loan debt is not supported by the evidence.

In other cases the panel reversed a trial court in Chowning v. Chowning, #105,033 (OKC 2008) because the decree does not indicate the value of the home or its indebtedness, nor did it set forth the net income of the parties and the allocations of the debts the trial court ordered them to pay and therefore the court could not determine whether the property division was equitable. See also Myers v. Myers, #105,169 (OKC 2008) (“Without findings of fact as to the value of the marital property, we cannot determine the equitableness of the trial court's order”; reversed).

See also Marriage of Walter, #105,649 (OKC 2009), where the husband raised the issue the trial court was required to set a date for the valuation of property and a cutoff date for the acquisition of marital property.

The appellate panel noted that the record reflected a critical evidentiary deficiency with respect to the exact valuation date used and the retirement accounts' total value on the established date. Incomplete appraisal proof and absence of a specific date of valuation requires that the property division be reversed and remanded to permit the trial court to render a first instance valuation of the retirement accounts on the date selected.

MISCELLANEOUS Procedural Issues

In Dennis v. Dennis, #104,137 (Tulsa 2008), the trial court excluded husband’s expert witness because he had not supplied a report concerning the substance of his testimony to the wife’s attorney. In this case the expert did not prepare a written report nor was he required to because 12 O.S. §2705 clearly allows an expert witness to give opinion testimony on a matter without previously disclosing on what the expert relied or how he arrived at that opinion unless the trial court requires him to make such disclosures in advance.

The wife never sought the court's assistance either before trial or at trial in discovering the expert's opinion or his methodology. The husband identified the expert in a timely manner, and other than asking husband's counsel to provide a written report, the wife took none of several options available to her to discover what his testimony at trial would be by either deposing the expert or enlisting the court's assistance to require the husband to supplement his interrogatory responses or to state in the pretrial orders the exact 40

nature of the expert’s testimony and what value he placed on the business. Therefore the trial court abused its discretion in excluding the expert.

An order nunc pro tunc is only appropriate to make the decree conform to what the court actually ordered.

When the court substitutes the government’s calculation of the amount of the military pension awarded to the wife in lieu of what the court actually ordered, it commits error. Meyer v. Meyer, #105,135 (OKC 2009). See also Marriage of Arnett, #105,789 (Tulsa 2009) (trial court properly concluded that nunc pro tunc is improper to correct decree to make the alimony in lieu of property into support alimony).

Enforcement Husband cannot via a motion to address omitted issues three years after decree was entered modify the property division. Therefore trial court erred in granting husband’s motion to reopen the case to address a tax liability. Since the liability was omitted from the decree it remained a joint obligation.

Gottschalk v. Gottschalk, #104,700 (Tulsa 2008).

Husband cannot be held in contempt for failure to maintain the property pending its sale when the divorce decree does not require him to do so. Brinlee v. Brinlee, #105,241 (Tulsa 2009).

ALIMONY The Original Alimony Award Cases affirming the trial court: Long v. Long, #104,343 (Tulsa 2008)(no alimony); Here, the trial court found that Wife "is thirty-four (34) years old, in good health and has much better financial means now than when she started the marriage, her income having increased some threefold during that time. Wife has made no effort other than one (1) course to access a higher degree of education." Her postponement of her education began before the parties married. The husband testified that he told the wife he could find a job in Nashville after his residency ended so that she could finish her education. He also testified that he arranged for Wife to shadow a radiology technician at work when she expressed an interest in that field but "she never did it." She testified at trial that she had not taken either the ACT or SAT test in preparation for college, had not applied to any colleges, and had not investigated the costs related to

attending school. She admitted saving $30,000 and buying two additional cars while living apart from Husband during the last few years of the marriage.

PoeWoolum v. Woolum, #104,500 (Tulsa 2009).

The trial court ordered the husband to pay the wife $48,000 over the course of four years. Although the wife did assume the role of primary caretaker for the children of the marriage and thereby forewent pursuit of a career, it was clear that she did acquire certain skills that would assist her in transitioning to future productive employment. .However, it is clear that she has an established need for financial assistance during a readjustment period and husband does have an ability to pay some support." “Although it is clear that both parties must make substantial changes to their lifestyles after years of living beyond their means, we agree with the trial court that Wife established a need for assistance during a post matrimonial readjustment period and that Husband has the ability to pay some support.”

Marriage of Reed, #105,073 (OKC 2009). Trial court awarded wife $66,000 over five years which she contended was inadequate. Affirmed because contrary to her own testimony of total disability, the evidence demonstrated that she suffers no medical condition rendering her incapable of employment. The evidence of her post separation expenses on which she based her claim to eleven years of support demonstrated her spending on nonessential items. The trial court had previously granted the wife a share of the parties' liquid assets and debtfree rental property capable of generating income.

Sexton v. Sexton, #105,408 (Tulsa 2009) (cert. pending). Affirming no alimony awarded. The panel noted: the wife has two college degrees, a real estate license, and is a paralegal. At trial, she testified she was making $30,000 a year and therefore no abuse of discretion.

Marriage of Riner, #105,598 (OKC 2009). Affirming no alimony award. Three year marriage and wife had worked for 29 years prior to marriage. She is capable of gainful employment, and earns a modest monthly salary. From his earth moving business, the husband earned monthly net income not substantially greater than the wife and therefore she has failed to show need.

Ratliff v. Ratliff, #106,367 (OKC 2009) (cert pending). The trial court awarded the wife support alimony 41

in the amount of $120,000.00 payable at the rate of $1,500.00 per month for 80 months and a property division award of $337,000. The wife, who is 55 years old at trial, testified that except for preliminary instruction as a medical assistant during high school, she had no specialized work or skill training, and no education beyond high school. She worked briefly as a bookkeeper in her husband’s business, but her primary work experience had been as an assistant librarian in the public schools. The wife testified she currently earns $1,347.50 per month as an assistant librarian in a Texas public school. She also testified she receives some oil royalty payments averaging between $100.00 and $150.00 per month. She testified she has no ability to earn anything more than what she is currently earning, and that her income is inadequate to meet her needs. A schedule of her living expenses totaled $5,320.00 per month. The trial court properly based its decision to award her support alimony upon evidence of her earning capacity, her education, and her age. In addition the trial court limited the support alimony award to 80 months, terminating at a time when the wife would be eligible to receive Social Security income.

Wilson v. Wilson, #105,480 (OKC 2009) (cert. pending). The trial court awarded support alimony of $372,000.00 payable over five years in monthly installments. The parties had a 26 year marriage, the wife had a modest income after thirty-six years of teaching and the husband's had a substantially greater income from his architectural firm. There was also testimony of the wife that she needed medical treatment for her deteriorating health and the amount awarded was only two-thirds of that requested by the wife.

Berry v. Berry, #105,765 (OKC 2009). Affirmed an award of no alimony because the wife failed to show need beyond the amount awarded to her in the temporary order.

Cases reversing or modifying the trial court: Chowning v. Chowning, #105,033 (OKC 2008).

Where there is nothing in the decree concerning the factors for alimony a trial court’s decision denying alimony may be reversed.

Scruggs v. Scruggs, #105,560 (Tulsa 2009). Trial court awarded wife $2,400 a month for ten years. The parties had been married for 35 years, and Wife was 53 years old at the time of dissolution. The husband's income is largely guaranteed. The wife suffers from a kidney condition that requires frequent medical treat-

ment. She is also caring for the couple's adult Down's syndrome child and will have to hire paid caregivers if she enters the workplace full time. The wife has various educational qualifications that could lead to future employment, but this transition may be lengthy, and is likely to require some "cushioning." The alimony was modified to require the husband shall pay support alimony of $1,050 per month for the first year of the district court support alimony order; $840 per month during years two and three; $420 per month during years four and five; and $210 per month during the remaining five years of the ten-year alimony award.

Consent Decrees It is now well-settled that an agreed to divorce that provides for an indefinite amount of alimony is an exception to the sum certain rule. For this year’s case see Marriage of Forrest, #105,662 (OKC 2009) (husband to pay all premiums and reasonable costs associated with the wife’s medical care; affirmed as a consent decree).

Modification and Termination of Support Alimony In Marriage of Lasher, #105,232 (Tulsa 2008), the parties’ decree was silent on whether alimony continued upon the wife’s remarriage. The husband, six months after the wife’s remarriage, asked the court to include the “remarriage language” in the decree nunc pro tunc. Upon it being included the wife filed an application to continue her alimony. The trial court found that the wife had filed her application in time since it was within 90 days after the nunc pro tunc motion was granted. The appellate court reversed.

Even though the decree contained no language about remarriage, alimony terminates upon remarriage and the wife’s 90 days runs from the date of remarriage.

The court in Holder v.Holder, #106,036 (Tulsa 2008) reaffirmed the rule that alimony ends with the death of the obligor, absent an agreement to the contrary. See Funnell v. Funnell, 1978 OK 69, 584 P.2d 1319.

An interesting scenario arose in Willibanks v. Willibanks, 104,738 (Tulsa 2009) (cert den). The husband originally filed to modify alimony in 2002. The trial court’s refusal to allow him to do so because the decree was a consent decree was reversed by the court of civil appeals. Following the reversal the husband did not reset the matter for trial and made no further payments. The wife cited him for contempt and he renewed his motion to terminate alimony. The trial court granted his motion but held him in contempt 42

for not making any payments from the time of the appeal to the date when his modification motion was granted. He claimed that the effective date of the modification should be the date he originally filed the motion in 2002. The appellate panel disagreed and upheld the trial court.

DIVORCE PROCEDURE DISMISSAL OF A PETITION In Marriage of Ciupak, #104,375 (Tulsa 2008) (cert.den.), the court noted that 12 O.S. §683 provides that an action may be dismissed by a plaintiff "before the final submission of the case to the jury, or to the court, where the trial is by the court." The term "final submission" is not explicitly defined by statute. Case law makes clear that if a trial court "has only its ruling left to complete, the matter is finally submitted to the court." Brandt v. Joseph F. Gordon Architect, Inc., 1999 OK 67, 998 P.2d 587. Following closing argument, the district court noted that, after its review of exhibits submitted by both parties, it would announce a decision as to child support, property division, debt and spousal support. The court did not request or grant a request for any additional briefing. The court then closed the record and set the matter for hearing a week later at which time the court intended to announce its ruling. At the conclusion of that hearing, the wife's counsel inquired of the court, "Divorce granted today on grounds of incompatibility?" To which the court responded, "Yes. Yes, thank you."

Based on the record, the court held that the wife's attempt to dismiss the case pursuant to section 683 was without effect because it was made subsequent to final submission of the case to the court.

PREMATURE APPEALS Thomsen v. Thomsen, #105,262 (Tulsa 2009), The decree provided that the court specifically retained jurisdiction over the disposition of the real property in case the marital home sold for less than anticipated.

Therefore, it is not a property division, because it is not a permanent, irrevocable disposition that is not subject to later modification. Therefore there was no final judgment and the premature appeal had to be dismissed.

VACATION OF JUDGMENT Nagy v. Nagy, #104,619 (Tulsa 2008) (cert.den.).

Husband filed his waiver of summons and general appearance on February 11, 1999. The decree provided that: “A percentage of retirement benefits from

the U.S. Air Force earned by Husband, computed according to the Uniform Former Spouses Protection Act, except that in the event that Husband retires from the U.S. Air Force prior to the younger child completing his degree of higher education, and one or both of the children is/are residing with Wife, then and in that event, Wife shall receive 50% of Husband's retirement pay (or other comparable benefit if Husband elects to take such in lieu of retirement pay) until such time as the younger child completes his degree of higher education . . . ." Approximately six years later, Husband filed his petition to vacate the divorce decree on May 20, 2005, alleging that the contingency provision above was void as a matter of law. Husband contends that the portion of the award providing an additional 12% of Husband's military retirement constitutes a "support award." Despite Husband's suggestion to the contrary, there is no evidence that the challenged award was intended as support alimony to Wife. On the contrary, the decree explicitly provided that Wife's interest was "her sole and separate property." Therefore not modifiable.

In a litigated divorce, the burden of proving such fraud as would justify vacating the decree is on the person seeking to vacate. Marriage of AlZubi, #105,417 (OKC 2009).

MARITAL TORT In Taylor v. Taylor, #105,271 (OKC 2009), the plaintiff was granted a judgment of $425,000 for compensatory damages and $150,000 in punitive damages in her claims against the defendant husband for assault and battery, false imprisonment and intentional infliction of emotional distress. The appellate panel affirmed over defendant’s res judicata objection. The panel noted that the defendant failed to interpose these defenses at the appropriate stage of the tort case. And even if he did Oklahoma law permits but does not require a joinder of the tort and divorce claims. See Roesler v. Roesler, 1982 OK 21, 641 P.2d 550.

JURISDICTION TO GRANT A DIVORCE

In O'Hanlon v. O'Hanlon, #104,392 (Tulsa 2008), the issue was whether the husband was a resident of the state for purposes of granting a divorce. The appellate panel affirmed the decision of the trial court.

Length of residence is not a factor where the act and the intent to acquire a domicile concur, and the controlling fact is intention. Intention can be determined from all the circumstances and the testimony of the 43

party in question. Here, Husband testified as to the indicia and intent of his residency in Oklahoma. He procured a driver's license, registered his car, bought car insurance, voted, and maintains a bank account in Oklahoma. His extended family lives in Oklahoma, which he calls "home." He has personal possessions in storage in Ardmore, Oklahoma, states he has none he claims elsewhere, and has spent sixty days in Oklahoma since 2004. His conduct is consistent with an intent to be and remain an Oklahoma resident.

MISCELLANEOUS ATTORNEY FEES In Edmonds v. Edmonds, #104,779 (Tulsa 2008) (cert.den.), the husband argued that the trial court erred in granting a divorce based on the parties stipulation that they were incompatible. The panel noted that in Oklahoma, incompatibility cannot be dependent upon an agreement or stipulation between the parties. Vandervort v. Vandervort, 2006 OK CIV APP 34, 8, 134 P.3d 892, 894. While parties and attorneys may stipulate to facts, they cannot, by stipulation, modify applicable law or control the court's action in a matter of law. Nor can they by contract change their legal relationship except as to property. 43 O.S. 205.

However, Title 43 O.S. 130 (2001) provides: Upon the trial of an action for a divorce, or for alimony the court may admit proof of the admissions of the parties to be received in evidence, carefully excluding such as shall appear to have been obtained by connivance, fraud, coercion or other improper means. Proof of cohabitation, and reputation of the marriage of the parties, may be received as evidence of the marriage. But no divorce shall be granted without proof." Although the parties may not change their legal status through a stipulation, a party's admission that the parties are incompatible is admissible pursuant to 43 O.S. 130.

Accordingly, to the extent the parties' stipulations were admissions of incompatibility, the trial court properly considered them in granting the divorce. In addition the record reflects the trial court also relied on the sworn statements given at a hearing where the husband testified to the tension between the parties and their inability to communicate honestly. Husband further stated Wife was financially irresponsible, to such a degree it affected her character. Therefore, the panel concluded that, although sparse, the evidence before the trial court was sufficient to support the conclusion that the legitimate aims of the marriage had been destroyed and a divorce should be granted on the basis of incompatibility.

2008-2009 Tables 44

Total Cases: 87 Oklahoma City 37 cases Tulsa 50 cases Affirmances: 53 or 60% Oklahoma City: 24 cases Tulsa 29 cases

Reversal and Modifications: 34 or 39% the same as last year.

Oklahoma City: 13 cases or 35.1% Tulsa:: 21 Cases: or 42% Chart showing cases involving different types of issues. Note that the total exceeds the total number of cases because a number of cases involved more than one issue.

Alimony Cases Oklahoma City: affirmed 5; reversed 1 Tulsa: Affirmed 4; reversed 1 Child Support Cases Oklahoma City: affirmed 9 reversed or modified 2 Tulsa: affirmed 7, reversed or modified 7 Property Cases: Oklahoma City: Affirmed 5 reversed or modified 11 Tulsa: Affirmed 10, reversed or modified 8 Custody & Visitation Cases: Oklahoma City: affirmed 7; reversed or modified 2 Tulsa: Affirmed 10; reversed or modified 5 Procedural Issues Oklahoma City: Affirmed 2 reversed or modified 0 Tulsa: Affirmed: 4, reversed or modified 0 Misc Cases (including Attorney Fees): Oklahoma City: Affirmed 2 reversed or modified 0 44

2010 OBA Family Law Section Officers and Leadership Chair

Immediate Past Chair

Chair-Elect

Kimberly K. Hays 248 W. 16th St. Tulsa, OK 74119 918-592-2800 918-592-4143 (fax) kimberlyhayslaw@aol.com

Amy E. Wilson 3840 S. 103rd East Ave. Suite 109 Tulsa, OK 74146 918-439-2424 918-439-2430 (fax) amy.wilson@okdhs.org

Lori Ann Pirraglia Family Law Solutions, P.C. 6440 Avondale Dr., Suite 208 Oklahoma City, OK 73116 405-843-3055 405-843-5581 lpirraglia@flspc.com

CLE Chair

CLE Co-Chair

Budget Officer

Lori Ann Pirraglia Family Law Solutions, P.C. 6440 Avondale Dr., Suite 208 Oklahoma City, OK 73116 405-843-3055 405-843-5581 lpirraglia@flspc.com

Lynn S. Worley 1861 East 15th St. Tulsa, OK 74104-4610 918-747-4600 918-744-6300 (fax) lynnsworley@yahoo.com

Lindsey Andrews 1624 Greenbriar Place Suite 600 Oklahoma City, OK 73159 405-691-2648 405-265-3275 (fax) landrews@coxinet.net

Secretary

Publications Chair

Practice Manual Co-Editor

Tamera Childers 3800 First Place Tower 15 E. 5th St. Tulsa, OK 74103-4309 918-581-8200 918-583-1189 (fax) tchilders @jonesgotcher.com

Virginia Henson PO Box 989 Norman, OK 73070 405-642-0970 405-329-5002 (fax) vhensonatty@gmail.com

Jon R. Ford 302 N. Independence Suite 300 Enid, OK 73701 580-234-0253 580-234-0256 (fax) jon@jfordlaw.com

Practice Manual CoEditor/Trial Advocacy Institute Co-Chair Phillip J. Tucker PO Box 601 Edmond, OK 73083-0601 405-348-1789 405-348-9724 (fax) pjtlaw@juno.com

Legislative Chair/Policies and Procedures Manual/ Trial Advocacy Institute CoChair Noel Tucker PO Box 601 Edmond, OK 73083-0601 405-348-1789 405-348-9724 (fax) pjtlaw@juno.com Nominations and Awards David A. Tracy 1701 S. Boston Tulsa, OK 74119 918-582-8000 918-583-1210 (fax) David.tracy@nwtlaw.com

Membership Co-chair

Membership Co-chair

Brad Cunningham 3800 First Place Tower 15 E. 5th St. Tulsa, OK 74103-4309 918-581-8200 918-583-1189 (fax)

Judge Gary J. Dean Mayes County Courthouse 1 Court Plaza Pryor, OK 74361 918-825-6386 918-825-7460 (fax) gary@garydean.com

bcunningham@jonesgotcher.com

Historian/Trial Advocacy Institute Co-Chair Rees Evans 501 NW 13th St. Oklahoma City, OK 73103 405-232-4311 405-232-4315 (fax) Rees.evans@sbglobal.net

Social Chair/Trial Advocacy Institute Co-Chair Keith A. Jones 1861 E. 15th St. Tulsa, OK 74104-4610 918-747-4600 918-744-6300 (fax) KAJoneslaw@gmail.com

By-Laws William G. Lasorsa 15 East 15th Street, Ste 3800 Tulsa, OK 74103 918-581-8200 918-583-1189 (fax) blasorsa@jonesgotcher.com

Judicial Liason Judge Donald L. Deason Oklahoma County Courthouse 321 Park Avenue, Room 105 Oklahoma City, OK 73102 405-713-2352 ddeason3@cox.net

Have a Suggestion? Want to Ask A Question?

Contact anyone in Section Leadership or send an email to OBAFLS@ gmail.com

Chair’s Column The OBA Family Law Section is going to have an amazing 2010! Thanks to Professor Robert Spector and Virginia Henson we are sending Recent Case Law Updates by emails to the OBA FLS members. Noel and Phil Tucker are working hard to keep the Section informed on proposed legislation and Professor Spector also provides us legislative summaries and status updates. The OBA FLS needs the input of all members on various pending legislation.

You are invited to share your opinions of any upcoming family law related legislation by contacting Noel or Phil. Our CLE programs are off to a great start, thanks to Lori Pirraglia. We continue our tradition of a social gathering in Tulsa and Oklahoma City after our CLE and Business Meetings.

In 2010 we have made a change to our monthly CLE and Business Meeting. Our meetings continue to occur on the second Friday of each month. We now begin our one-hour CLE at 3:30 p.m. and our Business meeting at 4:30 p.m. All Section members who attend each monthly business meeting will receive an entry into a special prize drawing to be held during the FLS Annual Meeting.

The Family Law Section is a co-sponsor of the Solo and Small Firm Conference to be held at the Downstream Casino in Quapaw, Oklahoma on June 24-26, 2010. Don’t miss this annual favorite at a new location.

It is an honor and privilege to serve as the Chair of the Family Law Section for 2010. I strive to continue the legacy of past Section Chairs and Officers who have made our Section the best in the Oklahoma Bar Association. I invite you to become involved in the OBA Family Law Section!

Kimberly K. Hays 2010 OBA Family Law Section Chair

Submission Guidelines The Publications Board is always looking for high-quality articles for inclusion in the Oklahoma Family Law Journal. Submission should be made electronically to: obafls@gmail.com. We can accept documents in Word or WordPerfect. Please don’t send it to us in Adobe (.pdf) because we have to retype it – and that makes our legal assistants cranky. Take that brief on that unusual question of law you had in your case and turn it into an article!

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MONTHLY MEETING SCHEDULE March 12, 2010 CLE and Monthly Meeting – Also Special Meeting for By-law Amendments April 9, 2010 CLE and Monthly Meeting May 14, 2010 CLE and Monthly Meeting June 11, 2010 CLE and Monthly Meeting June 24-26, 2010 OBA Solo/Small Firm(Downstream Resort & Casino Quapaw, OK) July 9, 2010 CLE and Monthly Meeting August 13, 2010 CLE and Monthly Meeting September 10, 2010 Monthly Meeting during Leadership Retreat & NO Monthly CLE v September 9, 2010 OBA/FLS Co-Sponsored CLE in Tulsa v September 10, 2010 OBA/FLS Co-Sponsored CLE in OKC October 8, 2010 CLE and Monthly Meeting November 2010 v November 17, 2010: Annual Meeting Family Law Track (Tulsa) v November 18, 2010: OBA FLS Annual CLE & Business Meeting (Tulsa) December 10, 2010 CLE and Monthly Meeting 3:30 p.m. Free Monthly CLE (Tulsa & OKC via teleconference) 4:30 p.m. Business meeting- All FLS members encouraged to attend ****** 5:00 P.M. Social / Networking hour (Both Oklahoma City and Tulsa) Tulsa: OSU/Tulsa North Hall, 204 North Greenwood, Room 208 OKC: OBA Center, 1901 North Lincoln Boulevard OBA FLS ATTENDANCE APPRECIATION PRIZE: EACH MONTH ANY OBA FLS MEMBER WHO ATTENDS THE MONTHLY BUSINESS MEETING WILL RECEIVE AN ENTRY INTO THE SPECIAL PRIZE DRAWING TO BE HELD DURING OUR ANNUAL MEETING IN NOVEMBER 2010!

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