Banta v. Banta, 70794

• Decision Date: 31 October 1989
• Docket Number: No. 70794,No. 1,70794,1
• Citation: 782 P.2d 946
• Parties: 1989 OK CIV APP 73 Fredrick BANTA, Appellee, v. Carolyn Marie BANTA, Appellant. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 946

782 P.2d 946

1989 OK CIV APP 73

Fredrick BANTA, Appellee, v. Carolyn Marie BANTA, Appellant.

No. 70794.

Released for Publication by Order of the Court

of Appeals of Oklahoma, Division No. 1.

Court of Appeals of Oklahoma, Division No. 1.

Oct. 31, 1989.

Appeal from the District Court of Oklahoma County; Niles Jackson, Judge.

M. Eileen Echols, and David W. Echols, Oklahoma City, for appellant.

Diana G. Mueller, Oklahoma City, for appellee.

MEMORANDUM OPINION

HUNTER, Judge:

Upon consideration of the briefs and record in the above styled matter, the Court finds as follows:

1. Appellant seeks review of the trial court's order denying her Writ of Habeas Corpus and Motion to Vacate. The parties were married on November 6, 1981, at which time, Appellant was pregnant with the minor child in question, Joshua, who was born March 6, 1982. Another child of the marriage was born in February, 1984. The parties were divorced on June 5, 1985. The divorce decree was a consent divorce decree and the parties stipulated that Appellee is not the biological father of Joshua, but that because Joshua was born during the marriage, Appellee is presumed to be the father. Appellant was awarded custody of the minor children of the parties'. Appellee was ordered to pay child support for both minor children, and awarded specific visitation privileges with the children.

Appellant was granted permission to leave the state with the children, and the trial court entered its order modifying Appellee's visitation to other specific periods, and ordered that Appellee be allowed weekly telephone calls, and notification of any change of address or telephone number of the children. Appellant left for California with the children. However, Appellant failed to give Appellee a correct address or telephone number for the children, thereby making it impossible for Appellee to know their whereabouts or to make contact with the children. On December 22, 1986, the trial court modified the custody provisions of the divorce decree, and awarded Appellee custody of the minor children. In June, 1987, the children were found in California and returned to Appellee in Oklahoma.

Subsequently, Appellant returned to the State of Oklahoma and sought vacation of the trial court's order modifying custody which was denied on November 2, 1987. Appellant did not appeal the trial court's order denying vacation of the modification of child custody.

On February 5, 1988, Appellant filed her Application for Writ of Habeas Corpus, for return of Joshua, or in the alternative, a Motion to Vacate the trial court's order of November 2, 1987, as to custody of Joshua. As grounds for her Writ of Habeas Corpus, or in the alternative, Motion to Vacate, Appellant alleged that because Appellee was not the biological father of Joshua, Appellee had no standing to be awarded custody.

2. Appellant contends that the trial court erred in finding that Appellee was the legal father of Joshua and, in effect, had adopted Joshua by operations of statute. We disagree. 10 O.S.1981, § 1 provides:

"All children born in wedlock are presumed to be legitimate."

Title 10 O.S.1981, § 3 provides:

"The presumption of legitimacy can be disputed only by the husband or wife.... Provided that if the child is born...