Chacon v. Chacon
| Decision Date | 06 March 2012 |
| Docket Number | No. 107,963.,Division No. 2.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,107,963. |
| Citation | 275 P.3d 943,2012 OK CIV APP 27 |
| Parties | Peter M. CHACON, Respondent/Appellant, v. Susan L. CHACON, Petitioner/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Creek County, Oklahoma; Honorable April Sellers White, Trial Judge.AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.
Beverley Q. Watts, Oklahoma City, Oklahoma, for Respondent/Appellant.
Stefanie Lorbiecki, Sapulpa, Oklahoma, for Petitioner/Appellee.
¶ 1 Respondent/Appellant Peter M. Chacon (Husband) appeals portions of the trial court's “Orders of the Court and Decree of Dissolution,” filed on December 23, 2009 (Decree). He also appeals the trial court's May 27, 2010 order 1 awarding attorney fees to Petitioner/Appellee Susan L. Chacon (Wife).
¶ 2 Husband asserts the trial court erred by: (1) refusing to transfer the case from Creek County to Pittsburg County; (2) allowing the children to relocate with Wife to Pennsylvania; (3) improperly dividing the marital estate; (4) awarding Wife support alimony; (5) improperly calculating the child support; (6) ordering that his visitation with the children be supervised; and (7) awarding Wife attorney fees and costs. Based on our review of the record and applicable law, we affirm the Decree as modified. We affirm the trial court's order granting attorney fees and costs to Wife. We grant Wife's request for appeal-related attorney fees and remand with directions.
¶ 3 Husband and Wife married in 2002. Both served in the military for most of their marriage. At the time Wife filed her petition for dissolution of marriage on August 28, 2008,2 the parties were residents of Creek County and had two children, ages three and one. Wife was six months pregnant with their third child. The parties had separated on July 26, 2008, when Wife learned that Husband was in an extramarital relationship with a woman (Girlfriend) who resides in Pittsburg County.
¶ 4 On September 9, 2008,3 the trial court entered a “Temporary Order Agreement,” which Husband, appearing pro se, approved. This agreed order established Wife's temporary custody of the children and a visitation schedule for Husband.
¶ 5 On December 1, 2008,4 Husband filed his motion to modify the Temporary Order Agreement to address Wife's intentions to move with the children from Creek County to Pennsylvania and the effect that would have on his visitation. He did not challenge the temporary custody arrangement. Wife responded,5 asking for modifications to the agreed order, as well as requesting relocation. She stated that since the Temporary Order Agreement was entered, the parties' third child was born in November of 2008. Wife asserted that child support, therefore, should be increased and that Husband's income had increased as well. Wife requested that Husband's visitation be modified to encompass the newborn and asked that he “refrain from exercising visitation with the children in the presence of his [Girlfriend] and that he have no non-relative overnight guests of the opposite sex while exercising visitation.” 6 Wife stated that she intended to move to Pennsylvania so that her parents could assist her with caring for the three young children.
¶ 6 The trial court held a hearing to consider modifications to the Temporary Order Agreement and Wife's relocation request.7 Both parties were represented by counsel,8 and both parties testified. Husband did not request a change in custody or joint custody. He testified that he is “on call” to report to work at any time.9 A minute order filed on December 24, 2008,10 indicates the trial judge granted the motion to modify, allowing Wife and the children to relocate to Pennsylvania,11 modifying child support, forbidding overnight visitation with the newborn, forbidding the parties from having the children around “third-party romantic friends,” and setting a hearing for January 6, 2009, to give the parties time to work out visitation. A minute order filed on January 9, 2009, noted the parties had agreed on visitation. The case was set for trial on February 26, 2009, and was subsequently reset for March 6 and then for April 23, 2009.
¶ 7 On March 12, 2009, attorney Jeff Contreras entered his general appearance as new counsel for Husband. The trial setting was continued until June 16, 2009.
¶ 8 On June 1, 2009, Husband filed a “Special Appearance and Motion to Transfer for Lack of Venue,” 12 asserting that 43 O.S.2011 § 103, the divorce venue statute, compels the transfer of the action to Pittsburg County because Wife moved to Pennsylvania in December of 2008, and Husband moved to Pittsburg County (McAlester) in April of 2009. Husband rented out the marital home in Creek County and moved into the house that Girlfriend shares with her 15–year–old son.13 He commutes to his job in Tulsa. Husband shares household expenses with Girlfriend.14 Wife responded that Husband was forum shopping and had waived any objection to venue by participating in the case for several months—at first pro se and then as represented by his first counsel, Mr. White—before Mr. Contreras entered his general appearance.
¶ 9 In a minute order, the trial court denied Husband's request for a change of venue on June 16, 2009.15 On June 17, 2009, the trial court denied Husband's request that the matter be stayed and declined to certify the order denying the venue change for appeal.16
¶ 10 The trial on the issues in the divorce began on June 17, 2009. It was continued after one day of testimony for docket availability. Husband filed a motion to stay the trial based on his objections to venue,17 which the trial court denied on September 18, 2009.18 The trial continued on September 24, 2009, and finished the following day. The Decree was filed on December 23, 2009.19
¶ 11 The Decree provides, in pertinent part, as follows:
1. Jurisdiction and venue are properly laid in Creek County, State of Oklahoma.
....
8. That [Wife] is a fit and proper person to be awarded sole and exclusive custody of the minor children of the parties. This Court find[s] that it is in the best interest of the minor children to be placed in the sole custody of [Wife].
The demeanor of [Husband] during the multiple hearings evidenced to the Court an emotional instability which necessitates professional visitation supervision. Continuing refusal to obey a court order alone might not support such a requirement but when considered in light of his West Point training to follow orders, his demeanor and his emotional instability, it was unavoidably clear that the safety and well-being of these minor children required professional supervision of their time with [Husband]. Whether this instability was the result of his military service or something else was never addressed.
Therefore, this Court finds that sole custody of the minor children is hereby granted to [Wife], subject to the professionally supervised visitation rights of [Husband] as set forth below:
(a.) [Husband] is granted professionally supervised visitation with the minor children for the protection of the safety of the minor children due to his emotional instability and admitted, continuing refusal to obey court orders regarding the minor children;
(b.) [Husband] may visit with the minor children when he is in [Wife's] current State of residence (currently Pennsylvania) or whenever the minor children will be in Oklahoma. All [Husband's] visits with the minor children must be arranged at times which will not conflict with [Wife's] or children's classes and will allow professional supervision of [Husband's] time with the minor children. Due to [Husband's] need for professionally supervised visitation, no overnight visits are safe or in the minor children's best interest.
(c.) Any costs attendant to professionally supervised visitation by [Husband] with the minor children shall be borne by [Husband] which gives him control of this expense.
(d.) No person of the opposite sex, not related by blood or marriage to the minor children, shall stay overnight with the parent while the minor children are in his/her physical custody.
....
12. Both parties have the legal duty and obligation to provide for the support of their children. Child support shall be in accordance with the Oklahoma Child Support guidelines. [Wife's] monthly income shall be figured at minimum wage ($7.25 per hour/ $1,256.67 per month plus her monthly disability income) because there is no evidence before this Court that [Wife] is currently employable at a greater hourly rate. The Court finds that [Wife's] employability in September of 2007 is not relevant. The Court has determined [Husband's] gross monthly income to be $10,305.03. This figure was calculated using [Husband's] 2007 average monthly income from his employer (using his 2007 W2s) plus his $1,174.00 per month VA benefits [$10,430.27 mo. avg.], [Husband's] 2008 average monthly income (using the parties' 2008 federal income tax return plus his $1,174.00 per month VA benefits [$9,140.08 mo. avg.]) and [Husband's] 2009 paycheck stubs, plus his $18,000.00 cash bonus received in February, 2009, plus his $1,174.00 per month VA benefits plus his $1,300.00 per month rental income [$11,344.74 mo. avg.]. The three monthly averages for 2007 ($10,430.27), 2008 ($9,140.08), and 2009 ($11,344.74) added together and divided by three (3) years equals [Husband's] average monthly income of $10,305.03 for the last three years.
13. [Husband's] monthly child support payments [are] $1,750.72
....
21. This Court finds that the real property of this marriage ... in Creek County ... [has a] market value as of March 20, 2009[of] $270,000.00. The Court determines that the equity in this home [is] $56,620.59....
22. This Court hereby awards the real property of this marriage as...
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