Scocos v. Scocos

• Decision Date: 29 March 2016
• Docket Number: No. 112,723.,112,723.
• Citation: 369 P.3d 1068
• Parties: Kayla J. SCOCOS, Plaintiff/Appellant, v. Andrew M. SCOCOS, Defendant/Appellee.
• Court: Oklahoma Supreme Court

369 P.3d 1068

Kayla J. SCOCOS, Plaintiff/Appellant,

v.Andrew M. SCOCOS, Defendant/Appellee.

No. 112,723.

Supreme Court of Oklahoma.

March 29, 2016.

Kayla J. Scocos (now Giles), Waco, TX, Pro se.

Matthew P. Gomez, Kimberly A. Jantz, Tulsa, OK, for Defendant/Appellee.

WINCHESTER, J.

¶ 1 The issue in this case is whether the trial court erred in finding Appellant/Mother's request to relocate from Oklahoma with the parties' child was not made in good faith. The trial court opined that the sole reason for the relocation to Louisiana was due to a love interest and found the request was made in bad faith. We previously retained the case and find error warranting reversal of the trial court's ruling.

BACKGROUND

¶ 2 Kayla J. Giles,¹ Mother/Appellant, and Andrew M. Scocos, Father/Appellee, were married on July 4, 2011, in Tulsa, Oklahoma. The couple had one child together, A.E. (the Child), who was born May 3, 2011. Mother filed for divorce on June 6, 2012 on the grounds of incompatibility. The trial court entered a Decree of Divorce and Dissolution of Marriage (Agreed Decree) as well as a Joint Child Custody Plan on April 3, 2013, wherein Mother was designated as the Child's primary, physical custodian. Shortly thereafter, Mother filed a notice of intent to relocate with the Child from Tulsa, Oklahoma to Alexandria, Louisiana.² Father filed an objection to the relocation and also sought primary physical custody of the Child.

¶ 3 Following a multi-day hearing, the trial court denied Mother's request to relocate, finding that the move was not in good faith as required by 43 O.S.2011, § 112.3(K) because a "major motivating factor" for the requested move was Mother's "romantic interest."³ The trial court maintained the parties' joint custody status, but ordered the Child's residence to be placed with Father, allowing Mother only two days of visitation per month despite the fact that she had previously been the Child's primary caretaker. The court denied Mother's motions to award her sole custody, to modify the trial court's new custody order, and to reconsider. Additionally, the court awarded attorney's fees to Father in the amount of $4,500.

¶ 4 Mother alleges four counts of error: (1) the trial court erred in determining "good faith"; (2) the court erred in applying the "best interests" test; (3) the trial judge erred in failing to recuse himself because he was biased against Appellant; and (4) the court erred in awarding Respondent attorney's fees. We retained the matter for review.

Standard of Review

¶ 5 The best interest of the child is a paramount consideration when the trial court determines custody issues and, on appeal, this Court "will not disturb the trial court's judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence." Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. An abuse of discretion occurs when the trial court's decision is "clearly against the evidence or is contrary to a governing principle of law." Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550, 554. We give deference to the trial court in reviewing custody decisions because it "is better able to determine controversial evidence by its observation of the parties, the witnesses and their demeanor." Hoedebeck v. Hoedebeck, 1997 OK CIV APP 69, ¶ 10, 948 P.2d 1240, 1243.

Discussion

¶ 6 Title 43 O.S.2011, § 112.2A affirms the right of a custodial parent to relocate, "subject to the power of the district court to restrain a removal which would prejudice the right or welfare of the child." Kaiser v. Kaiser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282 (Title 43 O.S.2011, § 112.2A gives the custodial parent a "presumptive right" to relocate.). After following certain procedural steps to provide notice and an opportunity for the nonrelocating parent to object, the relocating parent "has the burden of proof that the proposed relocation is made in good faith." 43 O.S.2011, § 112.3.⁴ Oklahoma law defines good faith as "an honest intention to abstain from taking any unconscientious advantage of another...." 25 O.S.2011, § 9. If the relocating parent meets the good faith requirement, "the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child." 43 O.S.2011, § 112.3(K) ; Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 12, 160 P.3d 951. The issue herein is whether Mother satisfied her burden to prove that the proposed relocation was made in good faith as required by § 112.3(K).

¶ 7 Following two days of hearings, the trial court denied Mother's relocation request, finding the reason for relocation was not made in good faith. In the court's October 16, 2013 Minute Order, the court found "the evidence presented is conflicting as to whether Petitioner is relocating for employment and family or to be closer to her significant other" and deemed that the move was not in good faith because "a major motivating factor of the Mother's requested relocation is her romantic interest." Although Mother admits she was in a relationship with a man she had known since childhood and who also lived in Louisiana, Mother denied that this relationship was the reason for her move. Mother further testified that the man worked out of the state the majority of the time and that he would not be living with her.

¶ 8 The court's finding that Mother's "only reason for relocation is for a love interest" is in direct conflict with Mother's undisputed testimony that the primary reasons for her move were acceptance of new employment with the Department of Veteran Affairs in Louisiana starting May 6, 2013, and that the large majority of her family was located in Louisiana. Mother testified she had over thirty family members living within close proximity to her new home in Louisiana and no grown family living in Oklahoma that could provide support to her in raising her children.⁵ She also testified that she had been unemployed for several months in Oklahoma and would have had to move to a different location to pursue a job in her field of work. Mother stated that her new, federal employment, coupled with the disability benefits she received, would allow her to provide a financially stable environment for her daughter, including a new home and a private preschool near where Mother worked.

¶ 9 Father argues Mother purposely withheld her intentions to move to Louisiana during the negotiations of the Joint Custody Plan and that her actions should be considered as bad faith under a request for relocation analysis pursuant to 43 O.S.2011, § 112.3(K). Mother admits she did not officially notify Father of her plan to relocate until she had received, and accepted, the Louisiana job offer.⁶ However, Mother testified she made clear that Father was aware of her desire to return to Louisiana. In fact, Father testified that he was aware of Mother's desire to return to Louisiana to live near her family since long before the Child was even born.

¶ 10 Regardless of whether Mother knew during negotiations of the joint custody plan that a move might be imminent, Mother contends this has no bearing on whether her reasons for relocation constitute good faith. We agree. The record is devoid of evidence that Mother's proposed relocation was designed to purposely deprive Father of visitation which could give rise to bad faith under 25 O.S.2011, § 9. Further, we can find no authority for the proposition that negotiation of a party's agreed divorce decree should have any relevance to a later relocation hearing.

¶ 11 Courts routinely find that employment opportunities, financial considerations and proximity to loved ones are all legitimate reasons to support relocation. See Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, 160 P.3d 951 (relocation to be with new spouse found to be in good faith); Kaiser v. Kaiser, 2001 OK 30, 23 P.3d 278 (Court approved relocation for employment-related reasons). Moreover, relocation requested on the basis of pursuit of a love interest should not automatically be deemed bad faith, as found by the trial court's statements herein. To the contrary, this Court has previously approved good faith requests for relationship-based relocation. See, e.g., Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 12, 160 P.3d 951.

¶ 12 We find that Mother has met her burden of proving that the move to Louisiana was proposed in good faith. A review of the transcripts shows Mother provided ample, legitimate reasons for her desire to move back to Louisiana, none of which reflect in the record any intent to harm Father's relationship with the Child or which would otherwise give rise to bad faith.

¶ 13 Mother's satisfaction of her good faith requirement shifted the burden to Father to prove that the relocation would not be in the best interests of the Child. 43 O.S.2011 § 112.3(K) ; Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 12, 160 P.3d 951 (once relocating parent satisfies good faith burden of proof, the burden shifts to the nonrelocating parent to show that the proposed move is not in the best interests of the child). Although the trial court's order generally stated that it applied the criteria for a "child best interest analysis," any such analysis is flawed considering the court found Mother's relocation reasons to be in bad faith.⁷ The necessary shifting to Father of the burden of proof regarding the Child's best interests clearly did not take place nor are any of the requisite factors discussed.

¶ 14 After reviewing the record, we find Father failed to sustain his burden of proof to show that relocation would be against the best interests of the Child. Paragraph J of 43 O.S.2011, § 112.3 provides the following factors for the court to consider regarding a proposed relocation:

1.a. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life,

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