Caber v. Dahle

Decision Date30 January 2012
Docket NumberDivision No. 2.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,No. 108,421.,108,421.
Citation2012 OK CIV APP 19,272 P.3d 733
PartiesDonald Joseph CABER, Jr., Petitioner/Appellant, v. Kendra L. DAHLE, Respondent/Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Lynne McGuire, Trial Judge.AFFIRMED.

Stephen C. Griffis, The Griffis Law Firm, PLLC, Oklahoma City, Oklahoma, for Petitioner/Appellant.

Christine N. Gronlund, Public Defender's Office of Oklahoma County, Oklahoma City, Oklahoma, Guardian ad Litem, for the Minor Child.

DEBORAH B. BARNES, Presiding Judge.

¶ 1 Petitioner/Appellant Donald Joseph Caber, Jr. (Father) appeals the trial court's order filed on May 19, 2010. The order awarded Father and Respondent/Appellee Kendra L. Dahle (Mother) joint custody of their minor child (Child), denied Father's motion to relocate without prejudice to re-filing, and found Mother not guilty of indirect contempt but ordered her to pay an arrearage of $3,374.48. Father argues on appeal that the trial court erred (1) by awarding the parties joint custody because it is clearly against the weight of the evidence and not in the best interests of Child, (2) by denying his motion to relocate because no objection was filed within 30 days, and (3) by finding Mother not guilty of indirect contempt because such a finding is clearly against the weight of the evidence. Based on our review of the record on appeal and applicable law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Mother and Father were never married. Father filed a Petition to Establish Paternity in February of 2007, requesting a judicial determination that he is the biological father of Child.1 In a “Temporary Order” filed in June of 2008,2 the trial court established Father as the biological father of Child, and awarded Mother and Father joint custody with equal physical custody on a week-by-week basis.

¶ 3 A “Decree of Paternity” was filed in December of 2008, establishing Mother and Father as the biological parents of Child and finding that it is in the best interest of Child that joint custody be awarded to the parties, “with Father being the primary custodian with final decision making authority, subject to Mother's standard visitation.” 3 Mother was ordered in the decree to pay Father child support in the amount of $201.44 per month. Regarding objections to a relocation request, the decree provided that [i]f a party who receives notice of the intent of the other party to relocate the residence of a child does not file, within thirty (30) days of receipt of such notice, a proceeding seeking a temporary or permanent order to prevent the relocation, the relocation is authorized.” 4

¶ 4 In the “Joint Child Custody Plan” attached to the decree, the parties were directed to “reasonably confer with the other by the most reasonable means and appropriate method” on issues affecting the physical, mental and moral welfare and upbringing of Child. However, Father was granted “final decision making authority” in the event they were unable to reach an agreement.5

¶ 5 On May 8, 2009, Father filed an “Application For Emergency Temporary Order.” Father asserted in his application that following Child's weekend visitation with Mother, Child had a “contusion” over her right eye. Father admitted that Mother had stated that this injury was the result of Child falling down steps on the way to the car. Father asserted that he subsequently “noticed more bruising to [Child's] face,” as well as to other parts of her body. Father admitted that Mother had explained that, to the extent Child had any bruises, she may have received them the day before from playing with other children at the park. On the basis of these injuries, Father requested temporary sole custody of Child.

¶ 6 Following an ex parte hearing, the trial court granted Father's application in an “Emergency Custody Order,” also filed on May 8, 2009. 6 The trial court granted Father temporary custody of Child, suspended Mother's visitation, and appointed a guardian ad litem.

¶ 7 On May 13, 2009, Father filed a Motion to Modify Child Custody Plan” in which he argued there had been a permanent, material and substantial change of condition requiring the termination of joint custody and an award of sole custody to Father. In June of 2009, Father filed an application for an indirect contempt citation against Mother for, among other things, Mother's failure to pay child support. Finally, on October 14, 2009, Father filed a notice to relocate in which he stated that he “intends to relocate his residence and that of [Child] to Philadelphia, Pennsylvania” on or about November 22, 2009.7

¶ 8 In Mother's response to Father's motion to modify custody, filed in July of 2009, she argued it is in the best interest of Child that custody be modified and that sole custody be awarded to her. She argued that Father should only be awarded supervised visitation “due to drug use in [Father's] home.” 8 Regarding Father's allegations of child abuse by Mother, she asserted that [i]t has been proven and concluded by the Department of Human Services that [Child] was never abused but rather sustained a minor injury due to an accidental fall.” 9

¶ 9 A hearing on Father's motion to modify custody and application for contempt was held on January 11, 2010.10 Mother testified at the hearing that, although she was ordered to pay $201.44 per month in child support, she had only paid a total of $50. However, Mother testified that she earns approximately $900 per month and that any additional money she has available goes toward her attorney fees and fees for supervised visitation with Child.11

¶ 10 Regarding injuries to Child while in her care, Mother testified that Child had also experienced injuries while in Father's care. She testified that all of the injuries that occurred while in her care were the result of common childhood accidents such as tripping on a sidewalk (contusion on Child's forehead), falling off a stool in the bathroom while brushing her teeth (injury to Child's lip), tripping while out shopping (stitches), and diaper rashes. Mother testified that she believed Father was “nit-picky” regarding her care of Child.

¶ 11 Mother and Father both testified that Mother had moved several times in 2009. Father testified that Mother was unable to maintain a telephone, consistent employment, or reliable transportation, and that she has had multiple roommates.

¶ 12 Father testified that his wife, with whom he was going through a divorce at the time of the hearing, had tested positive for marijuana during her pregnancy with their minor child. He also testified that they had an altercation while they were intoxicated that resulted in minor injuries to both of them. He testified that he had agreed to joint custody as to his minor child with his wife and that she was a “great mom” despite having tested positive for marijuana while pregnant with their child.

¶ 13 Christine N. Gronlund, the Guardian ad Litem (the GAL), testified that Father was not attempting to relocate for employment purposes and therefore could “perhaps” remain in Oklahoma.12 Among other things, the GAL also testified that Mother now has her own residence, and she testified that if Father is allowed to relocate with Child, Mother's visitation with Child would be undermined.

¶ 14 In her report dated January 7, 2010, the GAL states in part as follows:

[Father] appears to take very good care of [Child] and doesn't pose any physical threat of harm to his daughter at this time. However, [Father] is very intolerant of [Mother's] position as [Child's] mother. He has engaged [i]n a pattern and practice of discrediting [Mother] by taking numerous photographs of his daughter[']s alleged injuries in the hands of [Mother].... All these injuries have been investigated by the department of human services and no abuse has been confirmed.13

The GAL also states in her report that she objects to Father's relocation “because of her concerns that [Father] will not honor [Mother's] position as [Child's] mother. If allowed to relocate, [Child] may not see her mother again.” 14

¶ 15 Regarding Mother, the GAL states in her report as follows:

[Mother] appears to love her daughter and is concerned for her wellbeing. However, she has made an error in judgment in associating with David Webb.... [I]t is imperative that [Mother] remain disassociated from Mr. Webb as [the GAL] remains concerned about his true nature and his potential to harm [Child]. Other than Mr. Webb, [the GAL] has no concerns regarding [Mother's] ability to parent [Child].

¶ 16 The GAL recommends in her report “that the joint custody order ... remain in full force and effect,” that [Mother] remain away from David Webb[,] and that [Father's] request to relocate be denied.”

¶ 17 In the order filed on May 19, 2010, the trial court awarded Father and Mother joint custody of Child (With No Primary Custodian),” and awarded equal visitation on a “one week on and one week off” basis. The trial court found Mother not guilty of indirect contempt but ordered Mother to pay an arrearage of $3,374.48 at $75 a month beginning February 1, 2010. Finally, although Mother had failed to respond within 30 days to Father's notice to relocate, the trial court denied Father's motion to relocate without prejudice to re-filing. The trial court stated that it would not grant a motion to relocate “on [a] party's failure to respond timely with best interest [of Child] at issue. [Father] can re-file motion.” From this order, Father appeals.

STANDARD OF REVIEW

¶ 18 An appellate court will not disturb the trial court's judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. Daniel v. Daniel, 2001 OK 117, ¶ 21, 42 P.3d 863, 871. The burden is upon Father, as the appealing party, to...

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    ...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 person entitled to 'the' cust......
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