Abbott v. Abbott

• Citation: 2001 OK 31,25 P.3d 291
• Decision Date: 10 April 2001
• Docket Number: No. 94,203.,94,203.
• Parties: Craig ABBOTT, Appellant/Counter-Appellee, v. Katherine ABBOTT, now Kelly, Appellee/Counter-Appellant.
• Court: Supreme Court of Oklahoma

25 P.3d 291

2001 OK 31

Craig ABBOTT, Appellant/Counter-Appellee, v. Katherine ABBOTT, now Kelly, Appellee/Counter-Appellant.

No. 94,203.

Supreme Court of Oklahoma.

April 10, 2001.

Lauren LeBlanc Day, Oklahoma City, OK, Catherine H. Petersen, Norman, OK, Attorneys for Appellant.

Philip F. Horning, K. Nicholle Jones, Horning, Grove, Hulett, Thompson & Comstock, Oklahoma City, OK, Attorneys for Appellee.

SUMMERS, J.

¶ 1 This is an appeal by a noncustodial father from the trial court's granting of custodial mother's motion allowing her to relocate to Ann Arbor, Michigan with their son. The court also modified father's visitation schedule to accommodate changes necessitated by the move. The father contends that the trial court erred in allowing the move, and argues that the trial judge applied the wrong standard in reaching his decision. Mother brings a counter-appeal challenging attorney fee and cost awards entered by the trial court. We affirm the trial court's judgment in favor of mother on the issue of relocation. We modify the trial court's award of attorney's fee and costs, and reverse the trial court's judgment regarding transportation costs and the abatement of child support during summer visitation.

¶ 2 The parties, Katherine Abbott, now Kelly, and Craig Abbott, were divorced in Oklahoma County in 1994 after six years of marriage. She was awarded custody of their only child, three-year-old Kyle, and father was awarded standard visitation rights. Mother is a native of Michigan. The parties met while they were students at Michigan State University and married there. They moved to Oklahoma so father could attend University of Oklahoma College of Medicine, and he has since completed his medical training and is a successful dermatologist here. Mother was a student at the University of Oklahoma College of Dentistry, and when she completed her residency in orthodontics she was offered a faculty position with the Department of Orthodontics and Pediatric Dentistry at the University of Michigan Dental School. Her acceptance of that position precipitated this action.

¶ 3 Mother commenced this modification proceeding to advise the court of her intended move, and requested that in consideration of the distance involved, the court modify father's visitation schedule to give him less frequent but longer periods of visitation. Father responded by seeking to change custody to himself in the event mother moved to Michigan. Evidence at the trial showed that their eight-year-old son, Kyle, was an exceptionally well adjusted, intelligent and happy child. Mother was without challenge a fit and proper custodial parent. Father fully exercised all his visitation rights, and he and Kyle had a very good relationship. Father's existing visitation arrangement allowed him to see Kyle for approximately 35% of Kyle's total time, and the altered schedule requested by mother would still allow father 30%. Both parents had remarried, and Kyle had an excellent relationship with his stepfather and his stepmother and her extended family.

¶ 4 Mother and her husband were very enthusiastic about their move. Mother's job was an unmatchable career enhancing position and it offered their family financial and other substantial benefits. Her husband would have better career opportunities open to him there. Mother's family lives in Michigan and Kyle has more than 100 relatives nearby, including his maternal grandparents and many aunts, uncles and cousins. The area offers many cultural, educational and sporting opportunities which would be available to Kyle. Father opposed the move. He contended that moving away from Oklahoma would not be in Kyle's best interests because he had been here all his life, he was happy and thriving here with his family and friends, and he should not have to move just because his mother wanted to take this employment position. Father suggested that the interests of mother and her new family would be served better if she would remain in Oklahoma and practice here.

¶ 5 The trial court first announced its decision in favor of father, granting his motion to modify custody if indeed mother relocated to Michigan. The court denied mother's motion to reconsider, finding that it was in Kyle's best interests to stay in Oklahoma City because it was the place of stability for him, it was the only home he had ever known and he was flourishing here. The court accordingly ruled if mother moved to Michigan, Kyle's custody would be changed to his father. The court found that mother's proposed move met the custody modification standards set out in Gibbons v. Gibbons, 1968 OK 77, 442 P.2d 482, and mother was enjoined from moving him to Michigan.

¶ 6 The trial court later vacated this ruling on its own motion pursuant to 12 O.S.1991 § 1031.1. The court announced to the parties that upon reviewing case law and family law treatises, it had determined that the decision announced earlier was wrong. Thus the court entered the order at issue here, which granted mother's motion allowing her to move to Michigan with Kyle and established new visitation provisions. The judge advised the parties that he determined he had used an incorrect test in restricting mother from relocating, as he had been concerned with what appeared to be the best geographical location for Kyle. In that regard the court had considered it would be best for Kyle and his mother to stay in Oklahoma City. Upon further reflection and consideration of the law, however, the judge stated that he realized that the question he should have addressed was not one of geography, but custody. Therefore since the evidence did not support a finding that Kyle would be better off if his custody were changed from his mother to his father, the court reversed his prior ruling in favor of father and allowed mother to relocate to Michigan. The court stated that as Kyle's custodial parent, it was up to mother to decide what was best for him, and the court could not "infringe upon her province as a parent" to make the determination of where they should reside.

¶ 7 Father appeals, contending that the court had reached the correct result for the proper reasons when it had restricted mother from removing Kyle from Oklahoma. He argues that in light of the court's finding that the move to Michigan would be a permanent, material and substantial change which would adversely affect Kyle, it was an abuse of discretion for the court to allow her to relocate. He argues that the court now misconstrues its duty under Gibbons, supra.

¶ 8 We find the trial court correctly analyzed its duty as being a determination of the issue of Kyle's custody, and reached the correct result in allowing mother to relocate. We affirm that decision. In Kaiser v. Kaiser, 2001 OK 30, 23 P.2d 278, we held that in the absence of evidence showing...