Mullendore v. Mullendore

• Decision Date: 24 September 2012
• Docket Number: Nos. 108,740,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2,109,254.,s. 108,740
• Citation: 288 P.3d 948,2012 OK CIV APP 100
• Parties: Sabrina P. MULLENDORE, Petitioner/Appellee, v. Eric Vance MULLENDORE, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

288 P.3d 948

2012 OK CIV APP 100

Sabrina P. MULLENDORE, Petitioner/Appellee,

v.Eric Vance MULLENDORE, Respondent/Appellant.

Nos. 108,740, 109,254.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2

Court of Civil Appeals of Oklahoma, Division No. 2.

Sept. 24, 2012.

Appeal from the District Court of Creek County, Oklahoma; Honorable Mark A. Ihrig, Trial Judge.

AFFIRMED.

Sam P. Daniel, Jon E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, and Pamela L. Anthony, Anthony & Associates, P.L.L.C., Tulsa, Oklahoma, for Petitioner/Appellee.

Bradley A. Grundy, Richard A. Wagner, II, Suzanne E. Kern, Jada Stiner, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for Respondent/Appellant.

JOHN F. FISCHER, Chief Judge.

¶ 1 Eric Vance Mullendore (Father) appeals the denial of his motion to modify custody and related rulings. Finding no error, we affirm.

BACKGROUND

¶ 2 The parties were divorced in June 2007. An August 2007 order awarded custody of the parties' four minor children, aged three to six at the time, to Sabrina P. Mullendore (Mother). Father undertook various efforts to address concerns regarding his parenting ability raised by the district court during the initial divorce proceedings. On November 19, 2008, Father filed a motion to modify the August 2007 order in which he sought joint custody and equal visitation with the children. Mother filed a “counter-motion” to modify seeking to reduce Father's current visitation and to terminate the parenting coordinator previously appointed by the court. The district court denied Mother's motion to reduce Father's visitation but granted her motion with respect to termination of the parenting coordinator. Father appeals the denial of his motion to modify, the order terminating the parenting coordinator and the award of attorney fees to Mother.¹

STANDARD OF REVIEW

¶ 3 Custody contests are of equitable cognizance, and although an appellate court may examine and weigh the evidence, the findings and decree of the trial court cannot be disturbed unless found to be against the clear weight of the evidence or an abuse of discretion. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871;Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114. We will affirm a district court's determination with respect to a request to modify a child custody order unless “the trial court's decision is clearly against the weight of the evidence so as to constitute an abuse of discretion.” Williamson v. Williamson, 2005 OK 6, ¶ 5, 107 P.3d 589, 591. “An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” In re BTW, 2008 OK 80, ¶ 20, 195 P.3d 896, 908 (footnote omitted).

ANALYSIS

¶ 4 Father's appeal raises three issues for disposition. A fourth issue, that Mother relied on facts not in the record during her written closing argument, will not be considered. Father did not object after receiving Mother's closing argument or notify the district court of his position regarding the challenged statement. Generally, this Court does not reach issues the appealing party fails to raise in the district court, and we decline to do so here. Bottles v. State ex rel. Oklahoma State Bd. of Med. Licensure and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471, 472;Jackson v. Jackson, 2002 OK 25, n. 12, 45 P.3d 418.

I. Change in Custody

¶ 5 Father's principal argument in this appeal is that the district court erred in finding that his evidence was insufficient to warrant a change in custody and visitation. The district court's authority to alter its custody and visitation orders is provided in 43 O.S.2011 § 112(A)(3): “[the court may] modify or change any order [providing for custody or visitation] whenever circumstances render the change proper either before or after final judgment in the action.” It is well established that a parent seeking to modify custody bears the burden of proving that: (1) subsequent to the order sought to be modified, a permanent, substantial and material change of conditions directly affecting the best interests of the minor children has occurred; and (2) a change in custody would substantially improve the temporal, mental and moral welfare of the minor children. Gibbons v. Gibbons, 1968 OK 77, ¶ 12, 442 P.2d 482, 485.² Further, “the entire determination of the question must be in the light of what is the child's best interest.” David v. David, 1969 OK 164, ¶ 6, 460 P.2d 116, 117. Similar considerations are involved in determining a motion to modify previously ordered visitation. Scott v. Scott, 2001 OK 9, ¶ 5, 19 P.3d 273, 275.

¶ 6 As the district court noted and the record shows, Father had made “significant improvements in his ability to safely care and provide for the minor children” since the entry of the 2007 custody order. Father's evidence established that he attended conferences with his children's teachers, participated in school field trips and other activities, read books to his children's classes and coached their sports teams. Outside of school, Father's home was a safe, healthy environment for the children; he helped them with their homework and extracurricular activities, provided transportation when necessary and sound nutritional meals while the children were in his care. The parenting coordinator testified that Father did not give any of his children preferential treatment and that Father had achieved a level of parenting skill where he could spend “good quality time with his children,” the goal expressed by the district court in its 2007 custody decision. Evidence from another witness, the parenting educator, established that Father had acquired, in her opinion, excellent parenting skills and that the children were thriving in his care. She testified that Father was invested in his children's lives, she had no concerns about his parenting capacity and that she did not believe continuation of parenting classes was necessary. Father also entered an offer of proof, that had his children been permitted to testify, they would have testified they wanted to spend equal time with him.

¶ 7 The district court concluded that as admirable as Father's efforts had been, becoming a better parent, in and of itself, did not automatically entitle Father to a change in custody. We agree. Gibbons, and those cases addressing the modification of an existing custody order, have focused the analysis not only on a change in circumstances but also on the effect of that change on the children. “[A]pplicant must show that the change in conditions or circumstances affects the welfare of the children and that a change in custody would result in greater benefit to the children.” Stanfield v. Stanfield, 1960 OK 55, ¶ 0, 350 P.2d 261 (affirming the denial of the non-custodial parent's motion to modify and cited in Gibbons for stating one of the “basic rules” for determining a motion to change custody). Further, the fact pattern here is essentially identical to the facts in Gibbons: non-custodial parent sought a change in custody showing non-custodial parent's circumstances had changed. The Gibbons Court found that evidence insufficient and reversed the order modifying the original custody order because: “mother failed to sustain the burden of proof of making it appear that the change in her condition would result in the boy's being substantially better off, in those respects, if his custody were changed from the father to her.” Gibbons, 1968 OK 77, ¶ 24, 442 P.2d at 487. We also find this record indistinguishable from facts on which Stanfield was decided.

In the present case there has been a showing that defendant is now in a position to provide a home for these children in a good environment. However, there has been no showing that such home and environment is better than that provided by plaintiff and that a change would be of greater benefit to the children and their welfare.... Defendant's change of conditions alone is not sufficient reason, in our opinion, to require that these children be removed from their present surroundings and transplanted into an entirely new environment.

Stanfield, 1960 OK 55, ¶ 8, 350 P.2d at 263.

¶ 8 Absent from this record is any evidence that Mother's home or her parenting has changed, in a manner that adversely affects the children, since the entry of the 2007 custody order. Cf. Johnson v. Wingert, 2011 OK CIV APP 128, 268 P.3d 145 (reversing the termination of joint custody based solely on the father's improved circumstances). The fact that two parents are now able to provide the environment on which the district court's original custody order was predicated is insufficient to justify a change in that order.

¶ 9 Father also contends that the district court erred in denying his request to permit his children to testify regarding their preference as to the custody and visitation issues. The district court's September 29, 2009 minute order reflects that Father's request to have the children's testimony presented to the court was taken under advisement. At the hearing on October 14, 2009, Father's counsel announced that the court had ruled on that request. Father's counsel sought reconsideration of the court's denial of Father's request at the October 29, 2009 hearing, and the record reflects that the district court declined to do so. The controlling statute provides, in part:

A. In any action or proceeding in which a court must determine custody or limits to or periods of visitation, the child may express a preference as to which of the parents the child wishes to have custody or limits to or periods of visitation.

B. The court shall first determine whether the best interest of the child will be served by allowing the child to express a preference as to which parent should have custody or limits to or periods of visitation with either parent. If the court so finds, then the...