Boatman v. Boatman

Decision Date04 April 2017
Docket NumberCase Number: 113197 (Companion w/113857).
Parties Nick Dow BOATMAN, Petitioner/Appellee, v. Jennifer Erin BOATMAN, now Walls, Respondent/Appellant.
CourtOklahoma Supreme Court

404 P.3d 822

Nick Dow BOATMAN, Petitioner/Appellee,
v.
Jennifer Erin BOATMAN, now Walls, Respondent/Appellant.

Case Number: 113197 (Companion w/113857).

Supreme Court of Oklahoma.

Decided: April 4, 2017
Rehearing Denied September 18, 2017


James R. Gotwals, Mary L. Gutierrez, Benjamin D. Aycock, Tulsa, Oklahoma, for Appellant.

Bradley A. Grundy, Angela L. Smoot, Tulsa, Oklahoma, And Julie Henson, Owasso, Oklahoma, for Appellee.

KAUGER, J.:

¶ 1 The dispositive question presented is whether the Appellant, a joint custodian but not the primary physical custodian of the parties' minor child, can invoke the statutory relocation provisions. We hold that she cannot. We remand the cause for the trial court to hold a hearing within 30 days of the date that this opinion is filed to determine the

404 P.3d 824

primary physical custodian of the parties' minor child.

¶ 2 In a separate companion case,1 also decided here, the Appellant appeals the trial court's denial of attorney fees. We hold that the trial court did not err in directing each party to pay their own fees.

FACTS

¶ 3 Appellant Jennifer Boatman, now Walls (Mother), and Appellee Nick Boatman (Father) married in 2004. They have a single child, a daughter, born in 2005. The parties divorced in 2007, and equally shared time with their daughter under a joint custody plan.2 The Joint Child Custody Plan provides that "[b]oth parties shall have equal rights and responsibilities to the minor child, and neither parties' rights shall be superior." Neither party was named as the primary physical custodian, and no court order dictates which household represents the child's primary residence. Mother and Father have both since remarried, and each has had another child. In 2013, Mother's job as Director of Franchise Training at a national restaurant chain in Tulsa, Oklahoma, was eliminated, and she was offered an executive position with the chain in Atlanta, Georgia. The new position included an annual salary increase of $ 25,000, and an additional $ 17,250 in discretionary annual bonuses.

¶ 4 Mother announced her intent to relocate to Georgia, and Father filed an objection to relocation on September 29, 2013, as contrary to the child's best interest.3 A hearing on the merits was held over a two-day period in June 2014, and the trial court denied Mother's application to relocate. It concluded that the proposed relocation was not made in good faith and that it was not in the best interest of the child. It also ordered each party to pay their own fees and costs. Mother subsequently applied for an award of attorney's fees, which the trial court denied. Mother appealed the denial of the application to relocate and the denial of attorney's fees in separate companion cases, and the Court of Civil Appeals affirmed both decisions.

I.

A JOINT CUSTODIAN WHO IS THE NOT THE PRIMARY PHYSICAL CUSTODIAN CANNOT INVOKE THE STATUTORY RELOCATION PROVISIONS.

¶ 5 The custodial parent has a right to change his or her residence which can be limited by a court if the court finds that the relocation would prejudice the rights or welfare of the child.4 This right has been recognized in Oklahoma since the statutory guarantee came to us from the Dakota Territory in 1887.5 Title 43 O.S. 2011 § 112.3(G)(1) provides:

The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice. (Emphasis supplied).

The divisions of the Court of Civil Appeals have issued conflicting decisions regarding the ability of a joint custodian to relocate. Compare In re Marriage of King, 2016 OK CIV APP 31, ¶ 11, 371 P.3d 1139 (holding that "when a court orders joint custody, 43 O.S. 2011 § 112.3 permits either parent to initiate the relocation procedure unless the order provides otherwise") with Caber v. Dahle, 2012 OK CIV APP 19, ¶ 30, 272 P.3d 733 (holding that "a person with joint custody of a child or temporary custody is not a

404 P.3d 825

person entitled to 'the' custody of the child within the meaning of the relocation statute").

¶ 6 We hold that a joint custodian who is not the primary physical custodian cannot invoke the relocation statute. The use of the phrase "the person" in 43 O.S. 2011 § 112.3(G)(1) indicates that a single individual has the ability relocate the principal residence of a child. If this subsection applied to joint custodians in situations where neither parent was the primary physical custodian, then the provision would have referred to "a person entitled to custody" or another similar phrase. Our other cases applying this provision have involved either a sole custodian6 or a joint custodian with primary physical custody.7 Consequently, before a joint custodian can invoke the relocation provisions, the court must make a determination regarding who is the primary physical custodian.

¶ 7 In the present case, Mother did not have primary physical custody. As such, she was not "the person entitled to custody" who had statutory authority to relocate the minor child. This conclusion is supported by another, related provision. Title 43 O.S. 2011 § 112.3(B)(1) provides:

Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by this section. (Emphasis supplied).

And 43 O.S. 2011 § 112.3(A)(4) defines the "principal residence of a child" as:

a. the location designated by a court to be the primary residence of the child,

b. in the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside, or

c. in the absence of a court order or an express agreement, the location, if any, at which the child, preceding the time involved, lived with the child's parents, a parent, or a person acting as parent for at least six (6) consecutive months ...

Because the primary residence was not designated in any court order, and because the child resided equally with both Mother and Father, neither had the right to establish the principal residence of the child. Accordingly, Mother could not unilaterally invoke the relocation provisions. We therefore remand the cause for the trial court to hold a hearing within 30 days of the date that this opinion is filed to modify the joint custody plan and appoint a primary physical custodian of the parties' minor child. Appointment of a primary physical custodian under the joint custody plan is necessary in light of the obvious change of circumstances due to Mother's relocation. After a joint custody plan has been issued, the trial court may modify or terminate joint custody if it determines that the plan is not in the best interests of the child.8 Once this conclusion is reached, the trial court can proceed to determine whether relocation is proper.

¶ 8 And to determine whether relocation is proper, the trial court should employ a two-step process.9 Title 43 O.S. 2011 § 112.3(K) provides that:

The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.

First, the parent seeking relocation has the burden of demonstrating that the proposed relocation was made in good faith.10 If successful, then the burden shifts, and the parent objecting to relocation must show that the proposed relocation is not in the child's best interest.11 If the parent seeking relocation is unsuccessful in demonstrating good faith, then the burden of demonstrating that

404 P.3d 826

relocation is in the child's best interest remains with him or her.12

¶ 9 The trial court concluded that the proposed relocation was not made in good faith and that it was not in the best interest of the child, seemingly allocating the burden of proof to Mother on both issues. However, once a custodial parent makes a showing that his or her proposed relocation was made in good faith, the burden shifts to the objecting party to demonstrate that the move was not in the child's best interest.13

¶ 10 Because our lower courts have continued to misconstrue what amounts to "good faith" in the context of a custodial parent's relocation, we take this opportunity to address the issue. "Good faith" is "an honest intention to abstain from taking any unconscientious advantage of another."14 For example, the record in this case reveals that Mother's motivation for relocating was due entirely to her employment situation, and this was a situation that she did not create or cause. The company at which she had been employed for seventeen years eliminated her job. She was left with the options of being promoted to an executive position with a sizeable and significant salary increase, or potentially being forced to leave the...

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