G.S. v. Ewing, 74261

• Decision Date: 16 January 1990
• Docket Number: No. 74261,74261
• Citation: 786 P.2d 65,1990 OK 1
• Parties: , 1990 OK 1 G.S., formerly B., Petitioner, v. Honorable Noah EWING, Judge of the District Court of McClain County, 21st Judicial District, and C.B., Respondents.
• Court: Oklahoma Supreme Court

Page 65

786 P.2d 65

58 USLW 2463, 1990 OK 1

G.S., formerly B., Petitioner, v. Honorable Noah EWING, Judge of the District Court of McClain

County, 21st Judicial District, and C.B., Respondents.

No. 74261.

Supreme Court of Oklahoma.

Jan. 16, 1990.

Application to assume original jurisdiction, and Petition for Writ of Prohibition, Writ of Mandamus, and Writ of Habeas Corpus.

This application to assume original jurisdiction and petition for writ of prohibition, writ of mandamus, and writ of habeas corpus arose as the result of a dispute over child custody. The trial court denied the petitioner/mother's writ of habeas corpus and motion to dismiss for lack of jurisdiction. Two issues are presented: 1) whether an Oklahoma court, having rendered the original divorce decree, has jurisdiction to modify custody if the non-custodial parent resides in Oklahoma, but Oklahoma is not the child's "home state" within the meaning of 10 O.S.1981 § 1604; and 2) if the trial court had jurisdiction to hear the cause, should it have refused to exercise jurisdiction because Oklahoma is an inconvenient forum. We find that: 1) an Oklahoma court which renders a divorce decree retains continuing jurisdiction to modify custody pursuant to 10 O.S.1981 § 1616 if significant parental contact is maintained, and if one parent resides in Oklahoma; and 2) the trial court was correct in exercising jurisdiction because the children have a close connection with Oklahoma, and because substantial evidence needed to determine the custody issue is located within the state. Oklahoma is not an inconvenient forum.

ORIGINAL JURISDICTION ASSUMED; WRIT OF PROHIBITION, WRIT OF MANDAMUS, AND WRIT OF HABEAS CORPUS DENIED.

John R. Long, Oklahoma City, for petitioner.

Charles N. Gray, Purcell, for respondents.

KAUGER, Justice.

The two issues presented are: 1) whether an Oklahoma court, having rendered the original divorce decree, has jurisdiction to modify custody if the non-custodial parent resides in Oklahoma, but Oklahoma is not the child's "home state" within the meaning of 10 O.S.1981 § 1604; ¹ and 2) if the trial court was correct in hearing the cause, should it have refused to exercise jurisdiction because Oklahoma is an inconvenient forum. We find that: 1) an Oklahoma court which renders a divorce decree retains continuing jurisdiction to modify custody pursuant to 10 O.S.1981 § 1616 ² if significant parental contact is maintained, and if one parent resides in Oklahoma; and 2) the trial court was correct in exercising jurisdiction because the children have a close connection with Oklahoma, and because substantial evidence needed to determine the custody issue is located within the state. Oklahoma is not an inconvenient forum.

When this cause was argued to the Court on November 8, 1989, the petitioner/mother requested an award of attorneys' fees and other costs. Normally, there is not a prevailing party in proceedings for divorce ³ or child custody modification. However, the Uniform Child Custody Jurisdiction Act (the UCCJA/Act), 10 O.S.1981 § 1601, et seq., provides that the trial court has discretion to award attorneys' fees and other costs to the prevailing party if it determines that the forum was clearly inappropriate, or if it dismisses a petition for

improper removal of the child from another forum or from custody of the proper party. ⁴ Because Oklahoma is an appropriate forum to hear the instant cause, and because there is no question concerning improper removal of the children, the mother's request for attorneys' fees and costs is denied.

FACTS

The petitioner/mother and the respondent/father were married on January 30, 1982. The couple had two children, L.L.B. born on September 14, 1982, and A.H.B. born on August 20, 1985. The couple was divorced in McClain County on September 22, 1986. The mother and children resided in Oklahoma until shortly before the decree. Under the terms of the decree, custody was placed with the mother, with the father receiving reasonable visitation rights. When the decree was entered, the mother and two children were living in Jasper County, Missouri. Since the divorce, the children have lived with their mother in Missouri.

On August 5, 1989, the children's fraternal grandmother went to the children's home in Missouri and brought the children to Oklahoma for their regular summer visitation. The mother entered Baxter Memorial Hospital, Baxter Springs, Kansas, on August 12, 1989, for "treatment for Co-Dependency." She was dismissed from the hospital on September 13, 1989. The facts are disputed concerning whether the treatment, and its duration, were discussed by the parties before the children came to Oklahoma. The mother asserts that she and the children's father agreed that the children's visitation would be extended to allow her to complete a thirty-day treatment program. The father alleges that he was unaware that the mother had entered treatment, or that the children would need to extend their stay until the mother called him on August 17, 1989. The type of treatment for which the mother voluntarily committed herself is in dispute.

The father enrolled L.L.B. in the Purcell public schools on August 24, 1989. However, when the father tried to enroll A.H.B. in a pre-school program, he discovered that the child had not been given his regular immunizations--perhaps because of a previous allergic reaction. On September 18, 1989, the father filed a motion to modify the custody provisions of the divorce decree. He was also granted temporary custody of the two children. The same day, the mother arrived in Purcell to pick up the children, but the father refused to surrender their custody. On October 2, 1989, the mother filed a writ of habeas corpus and a motion to dismiss for lack of jurisdiction under the Uniform Child Custody Jurisdiction Act (the UCCJA/Act), 10 O.S.1981 § 1601, et seq. After denying the writ of habeas corpus, the trial court set the motion to dismiss for a hearing on October 19, 1989--the same date as the hearing on the father's temporary custody order.

All parties appeared before the trial court on October 19, 1989. The trial court denied the mother's motion to dismiss because: 1) no action was pending in any other state; 2) Oklahoma was a convenient forum; 3) the father had not engaged in reprehensible conduct; and 4) an emergency existed because of the mother's mental health. A hearing on the merits of the father's motion to modify the divorce decree was set for December 1, 1989, and we issued a temporary stay on November 30, 1989.

I AN OKLAHOMA COURT, WHICH RENDERS A DIVORCE DECREE, RETAINS

CONTINUING JURISDICTION TO MODIFY CUSTODY PURSUANT TO 10 O.S.1981 § 1616

IF SIGNIFICANT PARENTAL CONTACT IS MAINTAINED AND IF ONE

PARENT RESIDES IN OKLAHOMA.

The mother relies on 10 O.S. Supp.1982 § 1605 ⁵ for the proposition that once a forum other than Oklahoma becomes the children's "home state," jurisdiction of a custody dispute is proper only in the state where the children reside. The mother's allegation is not supported by the express language of the statute. It contains four distinct prerequisites for jurisdiction: home state, best interest of the child, abandonment or emergency, and lack of jurisdiction in any other state. Neither is this assertion supported by the teaching in Holt v. District Court, 626 P.2d 1336, 1341 (Okla.1981) that the bases for jurisdiction set forth in § 1605 are in the alternative. The father relies upon subsection (2) of the same statute. He contends the trial court should assume jurisdiction: because of significant connections between the children and this state; because there is substantial evidence located in Oklahoma concerning the children's present or future well-being; and because it is in the best interest of the children.

Because the mother and the father each fail to acknowledge the difference between jurisdiction to make an initial custody decree and jurisdiction to modify a custody decree, both parties misconceive the problem. The father seeks to modify an existing custody order. Therefore, the controlling issue is whether pursuant to 10 O.S 1981 § 1616, Oklahoma, as the state which rendered the original divorce decree (decree state), retains continuing jurisdiction to modify custody. These litigants are not the first to be confused by the distinction between initial and modification jurisdiction. ⁶ Perhaps, the confusion has been engendered to some extent by a misperception of our decision in State ex rel. Murphy v. Boudreau, 653 P.2d 531, 533 (Okla.1982), and the recent decision of the Court of Appeals in Breaux v. Mays, 746 P.2d 708, 710 (Okla.Ct.App.1987).

In Boudreau, we held that although an Oklahoma court had entered the parties' divorce, jurisdiction to consider modification of the custody decree was in the children's "home state." The father in Boudreau petitioned an Oklahoma court to modify its prior custody decree after having removed his son from the child's "home state" without either the permission or the In Breaux, a resident parent filed a motion to modify a custody provision entered by an Oklahoma court. The nonresident parent filed a motion to dismiss on the grounds that the trial court lacked subject matter jurisdiction. The Court of Appeals recognized the intent of the UCCJA--that the original decree state has continuing jurisdiction to modify custody awards. However, it held that because Oklahoma was no longer the children's "home state" the trial court was without jurisdiction to modify the decree. Because we find that an Oklahoma court, which renders a divorce decree, retains continuing jurisdiction to modify custody if significant parental contact has not ceased and if one parent resides in Oklahoma, Breaux can no longer be considered even persuasive authority ⁷ and is hereby overruled.

                knowledge of the child's mother.  The father sought to modify custody provisions of a divorce decree entered in Oklahoma in 1978.

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