455 P.3d 1 (Okla.Civ.App. 2019), 116,914, Dunlap v. Dunlap

Docket Nº:116,914
Citation:455 P.3d 1, 2019 OK CIV APP 75
Opinion Judge:P. THOMAS THORNBRUGH, JUDGE:
Party Name:In re the Marriage of: Sharon DUNLAP, Petitioner/Appellant, v. David DUNLAP, Respondent/Appellee.
Attorney:Jason M. Lile, ALLEN & GARRETT, ATTORNEYS, Tulsa, Oklahoma, for Petitioner/Appellant Rod W. Wiemer, ROD W. WIEMER P.C., Okmulgee, Oklahoma, for Respondent/Appellee
Judge Panel:REIF, S.J. (sitting by designation), and FISCHER, P.J., concur.
Case Date:November 05, 2019
Court:Court of Appeals of Oklahoma, Court of Civil Appeals of Oklahoma
 
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455 P.3d 1 (Okla.Civ.App. 2019)

2019 OK CIV APP 75

In re the Marriage of: Sharon DUNLAP, Petitioner/Appellant,

v.

David DUNLAP, Respondent/Appellee.

No. 116,914

Court of Civil Appeals of Oklahoma, Division No. 2

November 5, 2019

Mandate Issued: 12/05/2019

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[Copyrighted Material Omitted]

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APPEAL FROM THE DISTRICT COURT OF OKFUSKEE COUNTY, OKLAHOMA; HONORABLE LAWRENCE W. PARISH, TRIAL JUDGE

THIS OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS, Division 2

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

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.

FACTS AND PROCEDURAL BACKGROUND

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

STANDARD OF REVIEW

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

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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.

ANALYSIS

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.

I. THE COURT’S DECISION TO INTERVIEW THE MINOR CHILDREN

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, "have to talk to the boys. The boys are the ones that have told me things."

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, "In most cases, if the parents’ consent or agree to the interview, a trial court may hold an in camera preference interview without the parents. If a parent does not object to the procedure at the time of the interview then any objection is generally waived on appeal." 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 Mothers attorney, and concluded, "I will talk to the two children, because I think the law requires that...

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