Dunlap v. Dunlap
| Decision Date | 05 November 2019 |
| Docket Number | Case No. 116,914 |
| Citation | 455 P.3d 1 |
| Parties | In re the Marriage of: Sharon DUNLAP, Petitioner/Appellant, v. David DUNLAP, Respondent/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Jason M. Lile, ALLEN & GARRETT, ATTORNEYS, Tulsa, Oklahoma, for Petitioner/Appellant
Rod W. Wiemer, ROD W. WIEMER P.C., Okmulgee, Oklahoma, for Respondent/Appellee
OPINION BY P. THOMAS THORNBRUGH, JUDGE:
Sharon Dunlap (Mother), appeals a decision denying her motion to modify custody of minor children, D.D.D, Jr., and D.D.D. On review we affirm the decision of the District Court.
The parties were divorced on March 3, 2011, and a Decree of Dissolution of Marriage was entered granting custody of the party's minor children, D.D.D. Jr., and D.D.D., to Petitioner, Sharon Dunlap (Mother), subject to Respondent David Dunlap's (Father) specific rights of visitation. On January 31, 2014, Father filed a motion to modify custody of both children alleging that Mother had hidden the children for an extended period of time.1 The court granted Father emergency temporary custody which he maintained through a series of contentious court proceedings until November 28, 2016, at which time the court (with the agreement of Mother) placed sole custody of the minor children with Father subject to Mother's right of specified visitation.
On April 10, 2017 (about 5 months after the court awarded custody to Father), Mother moved to modify the Agreed Order to place custody with her for the sole reason that the children had expressed a preference to live with Mother. Father filed a Motion to Dismiss with supporting brief and a Motion to Settle Journal Entry and for Ancillary Relief on July 14, 2017.
On November 14, 2017, the court heard all pending motions; conducted an evidentiary hearing on Mother's motion to modify; and, at the specific request of Mother, conducted an in camera interview with the children as provided for by 43 O.S. 2011 § 113. At the time of hearing, DDD Jr. was 15 years of age and his younger brother, DDD, was 12. Following hearing, the court announced its decision in open court denying Mother's motion to modify.2
A trial court is vested with discretion in matters involving custody. Rowe v. Rowe , 2009 OK 66, ¶ 3, 218 P.3d 887. 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. "The burden is upon the party appealing from the custody and visitation award to show that the trial court's decision is erroneous and contrary to the child's best interests." Id . "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 (footnote omitted).
In order to review a change in custody based upon "a change in circumstances," we use the test established by Gibbons v. Gibbons , 1968 OK 77, 442 P.2d 482, to determine whether the parent asking for a change in custody has established a permanent, substantial and material change in condition such that the child would be substantially better off if the requested change in custody was ordered. A well-founded custody preference by a child is sufficient to evidence a change in condition that can trigger this "best interests" inquiry. Nelson v. Nelson , 2004 OK CIV APP 6, ¶ 4, 83 P.3d 911.
Mother briefs three propositions of error as follows:
1. The court's decision to interview the minor children, in camera , violated the mandates of 43 O.S. § 113 (B) and (C) ;
2. The court did not follow the guidance of the Oklahoma Supreme Court outlined in Ynclan v. Woodward , 2010 OK 29, 237 P.3d 145, when conducting the interviews of the children; and
3. The trial court's decision denying Mother's motion to modify custody constituted an abuse of discretion by failing to find a change of circumstances and award custody based upon the childrens' expressed preference.
Mother first argues that the entire in camera process should not have taken place because the court "could have simply relied upon the parties' testimony that the children had expressed a preference to live with their Mother." Aside from the fact that the Oklahoma Legislature has specified an in camera hearing as a proper means to discover a child's preference, rather than forcing the court to rely on hearsay statements, it is difficult to understand Mother's objection since it was Mother, who, after testifying that the children had come to her multiple times expressing a desire to live with her, was insistent that the Court would,
At close of her direct testimony, Mother's attorney made the following request of the court:
MS MASTERS: Judge we would request that the court interview the children, just so that we can at least have their preference in camera away from any of this drama and on the record.
The record discloses that Father, while preferring to give testimony himself as to whether or not the children had expressed a preference to live with Mother, nevertheless acquiesced in the court's decision to interview the children, in camera.3
In the first impression case of Ynclan v. Woodward , 2010 OK 29, ¶ 16, 237 P.3d 145, which Mother relies on to support her argument, the court noted, This is in accord with our holding in Mullendore v. Mullendore , 2012 OK CIV APP 100, ¶ 4, 288 P.3d 948, where we declined to consider an argument first raised on appeal noting that, "Generally, this court does not reach issues the appealing party fails to raise in the district court, and we decline to do so here."
Before the trial judge made his decision to interview the children he reviewed the case of Lowry v. Lewis , 2014 OK CIV APP 9, 317 P.3d 230 proffered by Mother's attorney, and concluded, We agree with the trial court's assessment since we have previously written that the testimony of a parent that the child requested the change in custody was, "proof that called for in-depth judicial assessment of the existing custodial arrangement and would be error for the trial court to dispose of the motion for change of custody without taking and considering evidence from the child and custodial mother, if she desired to present it." Nazworth v. Nazworth , 1996 OK CIV APP 134, ¶ 4, 931 P.2d 86.
The statutory framework which provides for the manner in which courts may consider the preference of the child in awarding custody is set forth at 43 O.S. § 113 which states:
At the time of the hearing, DDD Jr., was 15 years of age and his younger brother, DDD was 12. Mother testified that both of the children are "very intelligent, very good kids." Following the in camera interview the trial judge complemented each of the parents noting, "You have two really intelligent young men."
We find the court's determination to conduct an in camera interview of the minor children's custody preference was done in accordance with Mother's request, was without objection, and was well within the guidelines advanced by case law and the provisions of § 113. We find no error in the court's decision to interview the children in camera.
Mother next argues that the in camera interview in this case violated the guidelines of Ynclan v. Woodward , 2010 OK 29, 237 P.3d 145, because during the interview, the judge eventually asked each of the brothers, "Where do you want to live?" Part of ¶ 13 of Ynclan , which includes a broad survey of the laws of several states regarding the procedure and purpose of a trial judge conducting a private in camera interview with a child, includes the statement:
Nor should a child be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents.
In assessing Mot...
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