McCullough v. McCullough

• Decision Date: 10 July 2000
• Docket Number: No. 93,897.,93,897.
• Citation: 14 P.3d 576,2000 OK CIV APP 125
• Parties: Roy Lee McCULLOUGH, Plaintiff/Appellant. v. Susan J. McCULLOUGH, now Roark, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

14 P.3d 576

2000 OK CIV APP 125

Roy Lee McCULLOUGH, Plaintiff/Appellant. v. Susan J. McCULLOUGH, now Roark, Defendant/Appellee.

No. 93,897.

Court of Civil Appeals of Oklahoma, Division No. 3.

July 10, 2000.

Rehearing Denied August 11, 2000.

Certiorari Denied November 7, 2000.

Larry L. Oliver, Larry L. Oliver & Associates, P.C., Tulsa, OK, For Plaintiff/Appellant.

Hugh V. Rineer, Leonard & Rineer, P.C., Tulsa, OK, For Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

OPINION

ADAMS, Judge.

¶ 1 Roy McCullough (Father) and Susan McCullough (Mother) were divorced by a decree filed in Tulsa County, Oklahoma on June 8, 1989. As acknowledged in that decree, Mother and the parties' minor son, A, were then living in California. Father was a resident of Tulsa County. The decree placed A in the custody of Mother and set visitation for Father, which was to be exercised in California until A reached four years of age. On March 15, 1994, pursuant to an agreement of the parties entered into after Father filed a Motion to Modify, the trial court filed a Modification Order setting Father's visitation and specifically allowing extended visitation with Father in the State of Oklahoma. ¶ 2 On July 9, 1998, Mother filed a Motion to Transfer Jurisdiction, asking the trial court to transfer jurisdiction of the custody issues, including visitation, to the courts of California, relying on the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), 43 O.S.1991 § 501 et seq. The parties agree that Mother had previously filed an action in California concerning Father's visitation with A and had obtained a temporary restraining order prohibiting Father's contact with A. In addition, the parties agree that the California court had declined jurisdiction but stated it would proceed if Oklahoma acquiesced. Father filed a Motion to Modify on September 4, 1998, requesting that custody of A be placed with him.¹ He also filed a response to Mother's motion in which he alleged Mother was guilty of improper conduct which should prevent the transfer.

¶ 3 Effective November 1, 1998, the Legislature repealed the UCCJA and replaced its provisions with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), 43 O.S.Supp.1998 § 551-101 et seq. On June 4, 1999, Mother filed an amendment to her Motion to Transfer, restating her earlier allegations but basing her request for relief on the UCCJEA. After an initial conference concerning the issues, Father requested an evidentiary hearing to address his arguments of Mother's bad faith which he contended would defeat her request to transfer jurisdiction. The trial court denied that request and on October 18, 1999, filed an order granting Mother's Motion to Transfer.

¶ 4 As requested by Father, the order included specific findings of fact and conclusions of law. In pertinent part, the trial court found:

18. The Court has the discretion to relinquish jurisdiction if either (1) the Oklahoma Court determines that a significant connection with the state does not exist and substantial evidence is not available in the state concerning the child's care, protection, training and personal relationships, 43 O.S. Supp.1998 § 551-202(A)(1),² or (2) the Oklahoma Court determines that it is an inconvenient forum under the circumstances. 43 O.S. Supp.1998 § 551-207.

19. For the last ten years, [Mother]'s permanent residence and the child's home state, as defined by 43 O.S. Supp.1998 § 551-102(7), has been and continues to be in California.

20. The child has spent very little time in Oklahoma throughout his life.

21. [Father] acknowledges minimal contact with the child during his life, including no contact for the last three years. [Father] attributes lack of contact to [Mother]'s visitation obstruction.

22. All evidence relative to the child's school performance, medical records, involvement with extended family members and evidence concerning his future case (sic) is anchored in California.

23. California has a closer connection with the child given his lifelong residency in the state.

24. The Court finds that the State of California is a more appropriate forum because, as the child's home state, California has significant connections with the child. G.S. v. Ewing, 786 P.2d 65, 72 (Okla.1990).

25. The Court further finds that litigation in Oklahoma would be inconvenient to the child. Court appearances and psychological evaluations in Oklahoma could substantially disrupt the child's academic and social routines.

26. The Court further finds that, while it is most concerned with [Father]'s allegations concerning [Mother]'s visitation interference, it is not focused on the inconvenience to [Father] or [Mother], but rather to the potential inconvenience and disruption to the child.

(Emphasis in original).

¶ 5 Father argues the trial court erred in applying the UCCJEA rather than the UCCJA because the UCCJA was still in effect at the time this proceeding began, i.e., when Mother filed her Motion to Transfer and when Father filed his Motion to Modify, and the UCCJEA was not yet effective. Section 551-402 of the UCCJEA specifically addresses this issue and says "[a] motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this act is governed by the law in effect at the time the motion or other request was made." Even if we were to conclude that Mother's 1999 filing of the amendment to her Motion to Transfer amounted to a new motion under this section, which we do not decide, Father's Motion to Modify should still have been determined under the law in effect when he filed it, the UCCJA. Therefore we must conclude the trial court erred in basing its decision on the provisions of the UCCJEA.

¶ 6 However, that conclusion does not end our inquiry. Under the UCCJA, a trial court had the discretion to decline to exercise its jurisdiction in favor of another state "if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum." 43 O.S.1991 § 509(A). According to 43 O.S.1991 § 509(C):

In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

1. If another state is or recently was the child's home state;

2. If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

3. If substantial evidence concerning the child's present or future care, protection, training and personal relationships is more readily available in another state;

4. If the parties have agreed on another forum which is no less appropriate; and

5. If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in [43 O.S.1991 § 502].

¶ 7 When we compare these statutory factors with the trial court's significant findings, it is clear that the trial court would have reached the same result under the UCCJA. Any error in applying the UCCJEA is therefore harmless and does not mandate reversal.³ ¶ 8 Father also argues the trial court abused its discretion in determining that Oklahoma was an inconvenient forum and that California was preferable. Overlooking the undisputed fact that his son has lived in California for virtually all of his ten years of life, Father argues that his presence and the presence of his family in Oklahoma, and the connection his son would have had with Oklahoma if Mother had not interfered with visitation, was sufficient to require the trial court to exercise its jurisdiction.

¶ 9 Father supports this argument by citing G.S. v. Ewing, 1990 OK 1, 786 P.2d 65. After holding that the Oklahoma trial court had "continuing jurisdiction" under the UCCJA to modify its own custody determination made in the divorce decree because one parent still resided in Oklahoma and had maintained significant parental contact with the children, the Ewing Court considered whether the trial court had abused its discretion in refusing the mother's request for dismissal on the basis of an inconvenient forum. Based, at least in part, on substantial evidence concerning the children's medical care located in Oklahoma, the Ewing Court concluded the trial court did not abuse its discretion.

¶ 10 As in Ewing, we consider this trial court's decision to decline to exercise its jurisdiction under the "abuse of discretion standard." All of the evidence concerning A's schooling, permanent medical care, and the circumstances surrounding Mother's care in the past are located in California. This would be true even if Father had been allowed to exercise all of the visitation provided under the 1994 order. Under those circumstances we cannot say that the trial court abused its discretion in finding Oklahoma to be an inconvenient forum and California to be the appropriate forum in which to litigate the custody issues involved here, including visitation.

¶ 11 Citing Boucher v. Boucher, 1989 OK CIV APP 14, 771 P.2d 242, Father argues Mother's "reprehensible conduct" in preventing his contact with the child, allowing her parents to "raise" A and making "bogus" allegations of abuse against Father should prevent, the transfer of ...