Barnes v. Barnes, 98090

• Decision Date: 11 January 2005
• Docket Number: No. 98090,98090
• Citation: 2005 OK 1,107 P.3d 560
• Parties: LAURA L. BARNES, now HENDRIX, Appellant, v. JASON L. BARNES, Appellee.
• Court: Oklahoma Supreme Court

2005 OK 1

107 P.3d 560

LAURA L. BARNES, now HENDRIX, Appellant, v. JASON L. BARNES, Appellee.

No. 98090

Supreme Court of Oklahoma

January 11, 2005.

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

Randal Dean Morley, Tulsa, Oklahoma, for Appellee.

Barbara Ann Bartlett, Tulsa, Oklahoma, for Amicus Association of Parenting Coordinator of Tulsa County.

HARGRAVE, J.

¶1 Mother was given custody of the two-year-old child in April of 1999 in an agreed decree of divorce, and Father was given standard visitation with extended summer visitation. In June of 2000, Father asked the court to further expand his visitation to one-half of the summer and for right of first refusal to care for the child when the mother could not. Father also requested a modification of child support. Testimony at the hearing demonstrated that there had been a deterioration in communication between the parties since they had both been remarried and Father's visitation with the child had become more difficult for the Father to procure. The mental health expert who evaluated the family agreed and recommended the appointment of a parenting coordinator to assist the parents with communication, with their visitation problems, to help them negotiate agreements, and to advise them what was in the best interest of the child. Father stated that he would not object to the appointment of a parenting coordinator. Mother testified that she was willing to follow the recommendations in the psychologist's report, and that she had discussed with her counsel the functions of a parenting coordinator. She testified that she was willing to use a parenting coordinator.

¶2 An order modifying the divorce decree was entered and filed on July 9, 2002. The trial court found a substantial, material and permanent change of circumstances and made modifications in visitation and the amount of child support paid. The order modifying appointed a parenting coordinator which is the main basis of the present appeal. An Order Appointing Parenting Coordinator was also entered. In that order, the parenting coordinator was given specific issues which outlined his decision-making power. These issues are as follows:

5. Issues Subject to Parent Coordination:

A. The following specific issues are hereby submitted to the Parenting Coordinator:

(1) To assist the parties in communications,

(2) To resolve minor issues,

(3) To monitor problems, if any, and transitions, and,

(4) To make recommendations regarding shared parenting time.

B.The Parenting Coordinator may not make any decisions outside of the scope of the issues submitted above, unless both parties agree.

¶3 The trial court, after hearing the testimony of the parties and the psychologist, waived the parties' signature on the Order Appointing Parenting Coordinator. Mother now appeals the appointment of the parenting coordinator as she argues such appointment is unconstitutional.

EQUAL PROTECTION

¶4 The equal protection clause of the fourteenth amendment requires that no State "deny to any person within its jurisdiction the equal protection of the laws." Due process protections encompassed within the Oklahoma Const. Art. 2, § 7 are coextensive with those of its federal counterpart. The United States Constitution and the Oklahoma Constitution each contain anti-discrimination measures that protect citizens from unreasonable classifications which have no important governmental interest. Dulaney v. Oklahoma State Dept. of Health, 1993 OK 113, 868 P.2d 676, 685.

¶5 There is a strong presumption which favors legislative enactments. A statute will be upheld unless it is clearly, palpably and plainly inconsistent with fundamental law. Nelson v. Nelson, 1998 OK 10, ¶ 12, 954 P.2d 1219, 1224. In testing the validity of a state statute which differentiates in treatment of one class paralleled with its treatment of another class, the statute is immune to an equal protection attack if the basis for the differentiation is neither arbitrary nor capricious, and it bears a reasonable relationship to a legitimate aim. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320; Nelson v. Nelson, 1998 OK 10, ¶ 12, 954 P.2d 1219, 1224; Abrego v. Abrego, 1991 OK 48, ¶ 8, 812 P.2d 806. The Fourteenth Amendment does not require that equal protection be measured by exact equality of classification. It does require that the classification rest on bona fide, not feigned differences; that the distinctions have some relevance to the purpose for which the classification is made; and that the different treatments are not arbitrary. Nelson v. Nelson, 1998 OK 10, ¶ 12, 954 P.2d 1219, 1224; Abrego v. Abrego, 1991 OK 48, ¶ 8, 812 P.2d 806.

¶6 Under this test, the first issue is who is the class and whether the classification is bona fide. Mother presents several U. S. Supreme Court cases, as well as local cases concerning grandparent rights. These are clearly not applicable here. When a divorce occurs, the non-custodial parent is not placed in the same position as the third parties to the family such as grandparents. The parental coordinator is not there to usurp the mother's rights to make decisions regarding her child, but is there to aid in the communication between the natural parents. The father in the instant case would be recognized under any scenario as having rights over and above that of a grandparent.

¶7 Mother also relies upon case law involving termination of parental rights. It is clearly inapplicable as termination of parental rights is not the same as allowing a parenting coordinator to assist the court in decisions of communication and enforcement of court orders. There is no taking of a fundamental right. The powers delegated to the parenting coordinators of aiding in communication and enforcing orders are court powers. The court is directed to assure children frequent and continuing contact with both parents and to encourage the parents to share the rights and responsibilities of child rearing. 43 O.S. 2001, § 112.

¶8 It is also important to note that the Parenting Coordination Act does not necessarily apply only to the class of divorced parents. It applies in paternity and guardianship cases where minor children are involved. 43 O.S. 2001, §120.2-120.3 What distinguishes the group that would come to court under these three scenarios versus married parent is simply the invocation of jurisdiction of the court to make orders affecting parental rights and responsibilities. These families do not have the parents living in the same intact home.

¶9 In Nelson, this Court found that a person who stands in a parental role and who has invoked the jurisdiction of the court in an action which will alter the characteristics of the parental unit, may be required to take an educational course intended to lessen the impact of the change on the minor children. The simple class distinction is that if minor children are not involved, the requirement does not apply. The classification affecting the litigants who had minor children recognized the harmful impact of divorce on children and was attempting to minimize the involvement of the minors in the parental conflict. Nelson, 1998 OK 10 ¶ 13. We found in Nelson that the class distinction did not violate equal protection.

¶10 In the present matter the class presented does not violate equal protection. States have a strong interest in controlling the divorcing process. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 904, 106 S.Ct. 2317, 2322, 99 L.Ed.2d 899 (1986); Nelson v. Nelson, 1998 OK 10, ¶ 14, 954 P.2d 1219. Taking jurisdiction over the children of divorcing parents is especially critical. Two parents now living in separate households require delineated times of parent access and responsibilities which are not the case in either married parents or divorcing couples without children. For this reason this classification is bona fide, and not arbitrary or capricious.

¶11 The next part of the equal protection test is whether the statute bears a reasonable relationship to a legitimate state interest sought to be protected. This is clearly a case where the interest of the State, that being the child's best interest in having two active natural parents, is legitimate. It reasonably relates to the government's legitimate concern that the best interests of minor children of divorcing parents be served. Nelson v. Nelson, 1998 OK 10, ¶ 14, 954 P.2d 1219.

DUE PROCESS

¶12 To determine that there was a violation of due process on substantive grounds we must ascertain that in the instant matter, absent some jeopardy to the health and safety of children, the government intruded into the familial relationship by requiring the Mother to participate with a parental coordinator to assist in communications and aid the court in the furtherance of post-divorce visitation. However, in determining whether the order or statute constituted a substantive due process violation, a balance must be struck between the right protected and the demands of society. Youngberg v. Romero, 457 U.S. 307, 320, 102 S.Ct. 2452, 2460, 73 L.Ed. 28 (1982).

¶13 The mother in the instant matter seems to argue that there are no limitations on the parenting coordinator. She argues that the coordinator somehow micro-manages the family thus taking away her rights as custodial parent to make decisions. However, the order appointing the coordinator in the instant matter is limited to matters that aid in the communication of the parties and the enforcement of the court's order of custody, visitation or guardianship.

¶14 The Statute that grants the power to Oklahoma Courts to appoint Parenting Coordinators puts strict guidelines on their use. 43 O.S. Supp. 2003 § 120.3 provides:

A. In any action for dissolution of marriage, legal separation, paternity, or guardianship where minor children are involved, the court may, upon its own

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