Foshee v. Foshee

• Decision Date: 07 December 2010
• Docket Number: No. 106,061.,106,061.
• Citation: 247 P.3d 1162,2010 OK 85
• Parties: Angela Lee FOSHEE, Appellee/Petitioner,v.Kenneth Michael FOSHEE, Appellant/Respondent.
• Court: Oklahoma Supreme Court

247 P.3d 1162

2010 OK 85

Angela Lee FOSHEE, Appellee/Petitioner,

v.Kenneth Michael FOSHEE, Appellant/Respondent.

No. 106,061.

Supreme Court of Oklahoma.

Dec. 7, 2010.

APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY; Honorable April Sellers White, Trial Judge¶ 0 The petitioner, appellee mother, sought termination of a previously agreed joint custody plan. The respondent, appellant father, argued that because the children preferred the existing joint custody arrangement, no change in circumstances existed which would require modification or termination of joint custody. The trial court modified joint custody, and awarded the mother sole custody and attorney fees. The father appealed and we retained the cause. We hold that when parents are unable or unwilling to execute parental duties jointly, a material change in circumstances has occurred such that joint custody must be modified and one parent must be given primary custody. Under the facts presented, the trial court did not err when it terminated joint custody and awarded sole custody and attorney fees to the mother.TRIAL COURT AFFIRMED.Sean P. Downes, Sapulpa, OK, for Appellee/Petitioner.Stephen J. Modovsky, Sidney A. Martin, Tulsa, OK, for Appellant/Respondent.KAUGER, J:

¶ 1 This cause involves the termination of joint custody and whether: 1) a material change in circumstances occurs if parents are no longer able or willing to execute parenting duties jointly so that joint custody must be modified; 2) the trial court erred in awarding sole custody to the mother; and 3) the trial court erred in awarding attorney fees to the mother who sought to terminate joint custody.

¶ 2 We hold that when parents are unable or unwilling to execute parenting duties jointly, a material change in circumstances occurs requiring joint custody to be modified, and that one parent must be given primary responsibility for the child or children. Under the facts presented, the trial court neither erred when it terminated joint custody and awarded sole custody to the mother, nor in awarding the mother attorney fees.

FACTS

¶ 3 On December 14, 2006, the appellee/petitioner, Angela Lee Foshee (mother), filed a petition for divorce from the appellant/respondent, Kenneth Michael Foshee (father). The couple had three boys: Z.M., T.M. and P.M., who were 14, 13, and 9, when the divorce was filed. On December 21, 2006, the parents filed a joint custody plan for the children agreeing to share rights, responsibilities, and decision-making authority. That same day, the trial court approved the proposed joint custody plan and granted the divorce.

¶ 4 Nine months later, on September 19, 2007, the mother filed a motion to terminate joint custody because it was no longer in the children's best interest. She also sought a modification of child support and an award of attorney fees and costs.¹

¶ 5 The trial court held a hearing on December 13, 2007. At the hearing, the mother testified that: 1) she and the father do not get along very well; 2) they cannot communicate on many issues; 3) the father uses profanity and speaks inappropriately to the children and to the mother and is verbally aggressive towards the mother; 4) in the presence of the children, the father told the mother he “had a bullet waiting for her” and he damaged several items in her house during an argument; 5) the father was uncooperative and non-participatory with the children's education or medical care; and 6) the father had argued and fought with the children, particularly the eldest. However, on cross-examination, it did appear at least some of the hostility towards the mother was related to an incident in which the father, just a week after the divorce, discovered that the mother was involved with one of his friends.

¶ 6 On January 29, 2008, the trial court issued an interim order which: 1) suspended the joint custody plan; 2) awarded custody of the children to the mother; 3) required that the father's visitation be professionally supervised with the exception of Christmas day when the grandparents were required to be present; and 4) modified child support. Another hearing continuing the matter was held on March 6, 2007. This hearing consisted of a re-examination of the events which were described in the previous hearing and further elaboration of how the parents were not able to get along joint-parenting. The father attempted to have a licensed professional counselor testify regarding his “anger management” issues, or lack thereof, but the trial court disallowed the testimony.

¶ 7 During the March hearing, the trial court proposed that the children be interviewed in camera regarding custody, on the record (with a court reporter), but outside the presence of counsel and the parents. It appears that the parties did not object to this procedure. On April 2, 2008, the trial court conducted an in camera interview of the three children. At the conclusion of the interview, the trial court closed and sealed the transcript. ²

¶ 8 On June 6, 2008, the trial court entered its decision and order which determined that joint custody was no longer in the children's best interest. The court also: 1) awarded sole custody to the mother; 2) ordered both parents to attend a “helping children cope with divorce or cooperative parenting course;” 3) ordered the father to complete an anger management course, and until its completion, required that visitation with the children in the presence of at least one of the father's parents or another adult approved by the mother; 4) determined visitation; and 5) modified child support. On June 9, 2008, the mother filed an application for attorney fees and costs which the trial court awarded on June 17, 2008. The father filed an appeal on July 3, 2008, seeking a review of the termination of joint custody, and the award of sole custody and attorney fees.

¶ 9 I.

WHEN PARENTS ARE UNABLE OR UNWILLING TO EXECUTE PARENTAL DUTIES JOINTLY, A MATERIAL CHANGE IN CIRCUMSTANCES HAS OCCURRED SUCH THAT JOINT CUSTODY MUST BE MODIFIED AND ONE PARENT MUST BE GIVEN PRIMARY CUSTODY. UNDER THE FACTS PRESENTED, THE TRIAL COURT DID NOT ERR WHEN IT TERMINATED JOINT CUSTODY AND AWARDED SOLE CUSTODY TO THE MOTHER.

¶ 10 The father argues that: 1) the trial court erred in terminating joint custody because the children preferred that the existing joint custody arrangement continue; and 2) no change in circumstances sufficient to modify the existing joint custody had occurred. The mother counters that the agreed joint custody plan was not working between the parents and that it was absolutely necessary for the trial court to terminate joint custody. Having found it necessary and appropriate to terminate the joint custody plan, the mother contends that the trial court was required to make a custody determination, and it was in the children's best interest to award sole custody to her.

¶ 11 Without disclosing all of details the children's sealed testimony, we note that all three children testified regarding joint custody. Two children preferred to live with both parents equally, half and half. One child preferred to stay primarily with the father. The linchpin of the father's argument is that because the children generally preferred that the current custody plan remain unchanged, it must remain “as is.” This is not the law in Oklahoma.

¶ 12 Title 43 O.S.2010 § 110.1 codifies the state's policy of assuring that minor children have frequent and continuing contact with their parents who have shown the ability to act in their children's best interest and of encouraging parents to share in the rights and responsibilities of rearing their children after separation or divorce—provided the parents agree to cooperate.³ When determining custody, the trial court is allowed, and if the child is old enough, required to consider the preference of the children when determining custody.⁴

¶ 13 However, the preference of the child is just that—a preference. We have never held that child preference is “the” deciding factor when determining custody or modifying custody. Rather, it is merely one of many factors which the trial court is required to consider.⁵ In Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145, we explained the statutory implications of a child's preference, we said in ¶ 13 that:

... The preference of the child is only one of many factors to be considered when determining the child's best interest concerning custody. It should never be the only basis for determining custody. Nor should a child be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents. It also gives the child the impression that their preference is “the” deciding factor for custody. Rather, the trial court should conduct such an interview so as to discern the child's preference, while at the same time, being sensitive to how the child is coping with the divorce, the pressures put on the child by the divorce and stating a preference, as well as to ascertain the motive of the child in stating a preference. When the trial court determines the child's best interest will be served by considering the child's preference, whether to hold such an interview is generally within the trial court's discretion. (Citations omitted.)¶ 14 Consequently, the issue in this cause is not whether the children were opposed to changing joint custody, but, whether the fact that parents are no longer able or willing to execute joint custody duties, constitutes a material change in circumstances such that joint custody must be terminated and sole custody awarded to one parent.⁶ Title 43 O.S.2001 § 109 governs joint custody proceedings and it defines joint custody as the sharing by parents in all or some of the aspects of physical and legal care, custody, and control of their children.⁷ Pursuant to § 109, after a joint...