Daniel v. Daniel, 94,027.

• Decision Date: 18 December 2001
• Docket Number: No. 94,027.,94,027.
• Citation: 42 P.3d 863,2001 OK 117
• Parties: Tina Michele DANIEL, Plaintiff/Appellant, v. Joe Brent DANIEL, Defendant/Appellee.
• Court: Oklahoma Supreme Court

42 P.3d 863

2001 OK 117

Tina Michele DANIEL, Plaintiff/Appellant, v. Joe Brent DANIEL, Defendant/Appellee.

No. 94,027.

Supreme Court of Oklahoma.

December 18, 2001.

Rehearing Denied March 5, 2002.

Karen A. Pepper Mueller, Oklahoma City, OK, for Plaintiff/Appellant.

Lyn E. Ables, Madill, OK, Barry Kent Roberts, Norman, OK, for Defendant/Appellee.

KAUGER, J.

¶ 1 This cause involves a dispute over child custody. A divorced mother and father each petitioned for a change from joint custody to sole custody of their minor child. The trial court terminated joint custody and awarded the father sole custody. The Court of Civil Appeals reversed the trial court and issued a directive rendering the opinion immediately enforceable. Two issues are presented on certiorari: 1) whether the Court of Civil Appeals may decree an opinion immediately enforceable; and 2) whether the trial court's order terminating joint custody and awarding sole custody of the child to the father was clearly against the weight of the evidence. We hold that: 1) the Court of Civil Appeals is without authority to decree an opinion immediately enforceable — an opinion of the Court of Civil Appeals is not effective or enforceable in the district court until the issuance of the mandate; and 2) the trial court's award of custody to the father is supported by the evidence. We also hold that each parent is responsible for their appeal-related attorney fees and other litigation expenses.

FACTS

¶ 2 On March 24, 1999, the plaintiff/appellant, Tina Michele Daniel (mother/parent), filed for a divorce from the defendant/appellee, Joe Brent Daniel (father/parent). In the petition, the mother sought sole custody of their minor child with the father to have visitation rights. The father answered, seeking sole custody of the child. A temporary custody hearing was held and the trial court ordered custody of the child divided between the parents.¹

¶ 3 At the trial on the merits, the father proposed joint custody with physical custody alternating every two weeks. The mother did not submit a custody plan. On July 2, 1999, after the trial on the merits was held, the trial court divided the personal property and debts, ordered the father to pay child support, and granted the divorce. The court awarded both parents joint custody. The child resided with the mother during the school year and with the father during the summer. Both parents were granted liberal visitation with the child during the time that the other parent had physical custody.² ¶ 4 On October 8, 1999, the father filed a motion to terminate joint custody and requested that he be awarded sole custody of the child. He asserted that: the mother had refused and neglected to follow, implement, or abide by the joint custody plan; the mother would not cooperate with or talk to the father regarding the child; and the mother quit her job and moved to Arkansas. The mother filed a counter-motion to modify, arguing that the father's uncooperative behavior fostered antagonism between the parties. She also sought to terminate joint custody, and requested that she be awarded sole custody of the child allowing the father extended visitation privileges.

¶ 5 A hearing on the motion to modify custody was held on November 16-17, 1999, and both parties presented evidence that the joint custody plan was not working. Each parent sought custody of the child. At the end of the hearing, the trial court, ruling from the bench, terminated joint custody, awarded the father sole custody of the child, and awarded the mother some visitation during the school year and extended visitation privileges in the summer months. On January 7, 2000, an order was entered, memorializing the trial court's ruling.

¶ 6 The mother appealed and the Court of Civil Appeals, in an unpublished opinion, reversed. It determined that a change in the physical custody arrangement should not have been ordered because no material change in circumstances was shown that would warrant modifying physical custody. On July 30, 2001, the father filed for rehearing in the Court of Civil Appeals.

¶ 7 The mother filed an emergency motion in this Court and in the Court of Civil Appeals on August 17, 2001, seeking to have the Court of Civil Appeals' opinion immediately enforceable because she had enrolled the child in school in Arkansas. We denied the application which was filed in this Court. On August 20, 2001, the mother filed another motion in the Court of Civil Appeals, seeking a writ of habeas corpus and a contempt citation. She insisted that the father should be directed to return the child to Arkansas so that the child could begin school.

¶ 8 On August 22, 2001, the Court of Civil Appeals denied the father's petition for rehearing. It also denied the mother's writ of habeas corpus and contempt requests, but directed the trial court to enforce the Court of Civil Appeals' July 10, 2001, unpublished opinion. The father, on August 30, 2001, filed an emergency application in this Court to stay the Court of Civil Appeals opinion until the mandate issues. On August 30, 2001, we granted the father's emergency application to stay the enforcement of the Court of Civil Appeals' opinion.³ We granted certiorari on October 15, 2001.

I.

¶ 9 THE COURT OF CIVIL APPEALS IS WITHOUT AUTHORITY TO DECREE AN OPINION IMMEDIATELY ENFORCEABLE. AN OPINION OF THE COURT OF CIVIL APPEALS IS NOT EFFECTIVE OR ENFORCEABLE IN THE DISTRICT COURT UNTIL THE ISSUANCE OF THE MANDATE.

¶ 10 The mother concedes that an appellate opinion is not final until the mandate is issued, but she argues that nothing prevents an opinion of the Court of Civil Appeals from becoming effective or enforceable in the district court prior to issuance of the mandate.⁴ The father insists that the Court of Civil Appeals is without authority or power to decree its opinion immediately effective or enforceable in the district court, and that a Court of Civil Appeals' opinion is not effective or enforceable unless and until mandate issues. We agree with the father.

¶ 11 We recognized in Matter of Chad S., 1978 OK 94, 580 P.2d 983, the long standing rule that while an appeal is pending in the appellate courts, the district court is without jurisdiction to make any order materially affecting the rights of the parties to that appeal. Any such order is void. An exception to this rule arises if the appeal is filed and the trial court exercises its jurisdiction under 12 O.S. Supp.1999 § 1031.1 within 30 days.⁵ Then, the Supreme Court will stay the appeal pending final disposition of the cause in the trial court. Absent compliance with § 1031.1, the trial court loses its jurisdiction to make any order that pertains to the same issues on appeal.⁶

¶ 12 The Oklahoma Supreme Court Rules provide for the Chief Justice of the Supreme Court to issue the mandate after the Court of Civil Appeals renders an appellate opinion.⁷ The mandate from the Supreme Court is an order requiring the lower tribunal to comply with an appellate opinion,⁸ and it carries with it the authority for the trial court to proceed.⁹ When a cause is pending on appeal or on certiorari, a district court's exercise of judicial power with respect to issues which are tendered for review in the appellate forum is ineffectual if it occurs before the mandate has been transmitted to revest the trial court with subject matter jurisdiction.¹⁰

¶ 13 The mandate is issued for a Court of Civil Appeals opinion: if no rehearing is sought; if rehearing is denied and no certiorari is sought to the Supreme Court; or if certiorari is denied by the Supreme Court pursuant to Rules 1.16 and 1.83.¹¹ Any attempt to immediately enforce the opinion of the Court of Civil Appeals would result in an impermissible superceding of the Supreme Court's rules in violation of the Okla. Const. art 7 §§ 4 and 6.¹² Unlike the Supreme Court, the Court of Civil Appeals is not constitutionally created. Rather, it is a court of limited jurisdiction which exists as the result of permissive legislative authority.¹³ The Court of Civil Appeals is empowered only to the extent provided by statute, and by the rules and practices of the Supreme Court.¹⁴

¶ 14 There is no authority provided by statute or by the rules and practices of this Court which would allow the Court of Civil Appeals to supercede our rules. The Court of Civil Appeals lacked authority to decree an opinion immediately enforceable. A Court of Civil Appeals opinion is not effective or enforceable in the district court until the issuance of the mandate.

II.

¶ 15 THE TRIAL COURT'S AWARD OF CUSTODY TO THE FATHER IS SUPPORTED BY THE EVIDENCE.

¶ 16 The mother argues that the trial court abused its discretion when it terminated joint custody and awarded sole custody to the father because: 1) there was no evidence that the child's best interests would be served by awarding sole custody to the father; and 2) the trial court's custody determination was mainly based on the fact that she had moved to Arkansas. The father insists that the trial court's award of custody is supported by the evidence. Neither parent argues that the other is unfit.

¶ 17 Ordinarily, a change of custody is justified when the case falls into one of two categories: 1) when circumstances of the parties have changed materially since the prior custody order; or 2) when material facts are revealed which were unknown, and could not have been ascertained with reasonable diligence when the final divorce decree was entered.¹⁵ When a change in custody is requested based on a change of circumstances, the parent asking for modification must establish: 1) a permanent, substantial and material change in circumstances; 2) the change in circumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed to the other parent as requested.¹⁶ Here, however, there is no change in custody from one...