Galarza v. Galarza

• Decision Date: 19 January 2010
• Docket Number: Division No. 3.,No. 106,238.Released for Publication by Order of the Court,106
• Citation: 231 P.3d 694,2010 OK CIV APP 19
• Parties: Robin L. GALARZA, Petitioner/Appellant,v.Louis A. GALARZA, Respondent/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

231 P.3d 694

2010 OK CIV APP 19

Robin L. GALARZA, Petitioner/Appellant,v.Louis A. GALARZA, Respondent/Appellee.

No. 106,238.Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma,

Division No. 3.

Oct. 2, 2009.

Certiorari Denied Jan. 19, 2010.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Allen J. Welch, Jr., Trial Judge.

AFFIRMED.

Sam George Caporal, Mark W. Hayes, Oklahoma City, OK, for Petitioner/Appellant.

Rita J. Jencks, Jencks Law Firm, P.L.L.C., Edmond, OK, for Respondent/Appellee.

CAROL M. HANSEN, Presiding Judge.

¶ 1 Petitioner/Appellant, Robin Galarza (Mother), seeks review of the trial court's orders (1) denying her request to relocate the parties' minor child (Child), (2) awarding attorney fees to Respondent/Appellee, Louis Galarza (Father), (3) finding Mother guilty of indirect contempt, and (4) terminating joint custody and awarding sole custody to Father. We affirm, finding the trial court properly applied the law and its orders are not clearly against the weight of the evidence.

¶ 2 The record on appeal begins with a court minute entered on December 2, 2004, granting a divorce to the parties based on incompatibility and reserving all other issues for further hearing. A later order granted Mother temporary full custody of Child. On February 12, 2007, the parties tried the issues of permanent custody and property division. The trial court announced its ruling on March 14, 2007, granting the parties joint custody of Child, with Mother designated as the primary custodian. It directed Father's visitation on alternating weekends would begin after school on Thursdays. The trial court also stated each parent would have the right of first refusal to care for Child when the parent with physical custody was unavailable to attend to Child for a period in excess of four hours.

¶ 3 The trial court also announced its ruling regarding property division. Both parties had federal employee thrift savings plan (TSP) accounts. Father had liquidated his TSP account on August 12, 2003, at which time the balance in the account was $5.400.00. The trial court stated Mother was entitled to half of that amount, or $2,700.00. It noted the evidence established the balance in Mother's TSP account was $14,486.03 as of May 31, 2003, and stated,

I will also invite counsel to establish the value in her account as of August 12, 2003, the same day we're using as a point of reference for [Father] or the nearest date to that day regarding the quantification of the funds in her TSP account. [Father] is awarded one half of that sum less the aforementioned $2700. Such will be paid to [Father] within 90 days of quantification. And, of course, we'll need to have something in a journal entry reflecting this computation....

We will therefore, quantify both accounts as of August 12, 2003, and offset the difference and [Mother] will pay [Father] one half of that balance.

... [Mother's attorney] is invited to prepare a journal entry.

¶ 4 Although the record does not contain Mother's notice of relocation of Child, it does contain Father's objection to relocation, filed on April 30, 2007, stating Mother notified him on April 17, 2007 that she planned to relocate with Child to San Antonio, Texas. On June 20, 2007, Father moved to settle the journal entry for the custody and property awards. He also applied for a contempt citation, asserting Mother had not paid him certain portions of the property division, including his share of the TSP account, and had not provided information on the quantification of the account although he had made repeated requests. The trial court issued the contempt citation, directing Mother to appear for arraignment on July 9, 2007. At arraignment, Mother did not appear personally but through her attorney. The trial court bonded Mother on her own recognizance and set trial for September 19, 2007.

¶ 5 On July 31, 2007, the trial court heard the relocation objection. The parties stipulated Mother filed the notice of relocation on April 17, 2007. ¹ Mother testified she moved to San Antonio on June 12, 2007 because her husband had obtained a job there after finishing pharmacy school. On cross-examination, Mother acknowledged her husband was offered the job in San Antonio in October 2006, four months before the custody trial, and that he accepted the job on January 12, 2007. She testified:

Q Did you offer to the Court any information about your already planned move to San Antonio?

A No. No, there was no discussion of a move. This was just-

Q Did you agree to joint custody at the trial?

A Yes, I said that was what I wanted, joint custody with me being primary custodian. That's what I wanted.

Q Okay. Did you agree to give extra visitation under that joint custody plan?

A I don't remember specifics but, yes, I suppose so.

Q And so you knew on February 14th, I believe it was that you were moving to San Antonio. Your husband had already signed the contract; is that correct?

A Yes, ma'am.

Q But you did not feel that that was necessary to inform this Court about that?

A No, ma'am, I didn't. This was a settlement of property and Sam advised me not to muddle the issues.

¶ 6 The trial court ruled Mother had failed to meet her burden of proving the proposed relocation was in good faith. It reasoned the issues related to joint custody and shared parenting “consumed a majority of our time and efforts in the course of this trial,” and the parties' presentations and the trial court's ruling would have been different had Mother “been forthright regarding her intentions to move to San Antonio.” The trial court concluded,

A great deal of previous time of the court and of all concerned was literally wasted during the hearing on the merits of the custody and visitation issues because the petitioner withheld vital information.

Before the Court at this point in time, is one finite issue, is the proposed relocation of the child made in good faith[.] [T]his is not a close call. The petitioner fails to satisfy her burden of proof that the proposed relocation is in good faith. With all due respect, if this is not bad faith, I don't know what is. Objection sustained. Permission to relocate denied.

The trial court declined to treat Father's objection to relocation as a motion to modify custody. It did not enter an order memorializing its ruling until August 11, 2008.

¶ 7 On September 19, 2007, the trial court heard the contempt citation and motion to settle journal entry. Mother's attorney appeared but she did not. The trial court found Mother in contempt, but declined to issue a bench warrant. The parties settled the journal entry issues and the trial court signed an order memorializing its ruling of March 14, 2007. The journal entry as to custody and property division was filed the next day, September 20, 2007. The trial court's order of contempt, which was not filed until August 11, 2008, found its “ruling of March 14, 2007 was enforceable when entered by the Court on March 14, 2007,” and Mother was “guilty of indirect contempt for failing to follow the March 14, 2007 ruling of the court regarding paying the property division awards within 90 days of the Court's order.”

¶ 8 On October 26, 2007, Father moved to modify custody on the grounds Mother had withheld information at the custody trial regarding her intent to relocate, systematically withheld information about Child, regularly interfered with Father's visitation with Child both in person and on the phone, was attempting to alienate Child from Father, and would not communicate with Father about Child. Father requested he be granted sole custody. On July 16, 2008, Mother filed her objection, asserting there had been no permanent, substantial, or material change of condition.

¶ 9 The parties tried the change of custody issues on July 29, 2008. Mother, Father, and Child's counselor testified. The guardian ad litem reported joint custody was not working because communication was ineffective and the parties disagreed regarding Child's school, day care, extracurricular activities, and counseling. She opined both parents were good parents but Mother was emotionally reactive and unable to override her own emotions to do what was in Child's best interests. She pointed to unilateral decisions each parent had made but enumerated several major decisions Mother had made regarding Child without any mention to Father although the parties had joint custody. The guardian ad litem recommended sole custody be given to Father.

¶ 10 The trial court terminated joint custody, finding the joint custody was not working and was not serving Child's bests interests. It awarded sole custody to Father. It entered its order on August 20, 2008.

¶ 11 Mother filed her petition in error appealing four orders: Order Settling Journal Entry and Order of Contempt filed August 11, 2008; Order Denying Petitioner's Request to Relocate Minor Child filed August 11, 2008; Order Awarding Attorney Fees, filed August 11, 2008; and Order Modifying Child Custody and Support filed August 20, 2008. The record on appeal does not contain the motion for attorney fees or a transcript of the hearing on the motion. As the appellant, Mother bears the responsibility of bringing to this court a record upon which we can proceed. Robbins v. Oklahoma Alcoholic Beverage Control Bd., 1969 OK 202, 461 P.2d 610, 613. We may not presume error from a silent record. Absent a record showing otherwise, we must presume the order was responsive to the proof adduced and the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497. Therefore we will not review the Order Awarding Attorney Fees.

I

¶ 12 Mother's first six contentions of error challenge the trial court's denial of her request to relocate Child. She argues the trial court erred in (1) denying relocation based on her “intent to move in a prior custody trial,” (2) failing to apply 43 O.S.Supp.2009 §...