Harrison v. Morgan

• Decision Date: 20 June 2008
• Docket Number: No. 104,342. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,104,342. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
• Citation: 191 P.3d 617,2008 OK CIV APP 68
• Parties: Bonnie HARRISON, formerly Morgan, Petitioner/Appellee, v. Curtis Eugene MORGAN, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

191 P.3d 617

2008 OK CIV APP 68

Bonnie HARRISON, formerly Morgan, Petitioner/Appellee, v. Curtis Eugene MORGAN, Respondent/Appellant.

No. 104,342. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

June 20, 2008.

Appeal from the District Court of Texas County, Oklahoma; Honorable Ryan D. Reddick, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Crieg Rittenhouse, Guymon, OK, for Petitioner/Appellee.

Christopher J. Liebman, Guymon, OK, for Respondent/Appellant.

Scott D. Boughton, Assistant Attorney General, Oklahoma City, OK, for State of Oklahoma.

OPINION

ADAMS, Presiding Judge.

¶ 1 Curtis Morgan (Father) appeals a trial court order denying him permission to relocate with the parties' children in his custody from Guymon, Oklahoma to Poteau, Oklahoma, over the objection of the children's Mother, Bonnie Harrison, formerly Morgan. Although that portion of the trial court order which denies Mother's request to modify custody was not appealed and is affirmed, we conclude the decision on the relocation issue is against the clear weight of the evidence and must be reversed, with the case remanded for modification of visitation orders.

¶ 2 Mother and Father dissolved their marriage in 2000 and lived in or near Guymon, Oklahoma, where they exercised joint custody of their two minor children, M.M. and C.M. Father received temporary custody of both children in November of 2003, and on March 18, 2004, the trial court approved the parties' agreement to terminate joint custody and to grant sole custody to Father and visitation rights to Mother. Two years later, as required by 43 O.S.Supp.2002 § 112.3, Father gave timely notice of his intent to relocate with the children to Poteau, Oklahoma. Mother filed an objection and also moved to modify custody. After a hearing covering both issues, the trial court did not modify custody but upheld Mother's objection to the relocation.

¶ 3 Only Father appealed, arguing, inter alia, that the trial court abused its discretion in upholding Mother's objection because that decision was against the clear weight of the evidence and contrary to § 112.3.¹ Our analysis of any statutory interpretation issues is de novo and requires a non-deferential, plenary and independent review of the trial court's legal rulings. Fulsom v. Fulsom, 2003 OK 96, 81 P.3d 652. Father's complaints regarding the sufficiency of the evidence require us to review all of the evidence and reverse only if the trial court's decision is against the clear weight of the evidence. Gorham v. Gorham, 1984 OK 90, 692 P.2d 1375.

¶ 4 Therefore, we have two tasks. First, we must determine the applicable legal standards for court interference with relocation of children subject to a custody order in a marital dissolution action. Second, we must determine whether the trial court's conclusions are consistent with the application of those standards, accepting the trial court's factual determinations unless they are against the clear weight of the evidence.

THE LEGAL STANDARDS

¶ 5 From at least 1910 until November 1, 2002, Oklahoma's law concerning the ability of a parent with custody of a minor to change the child's residence was succinctly stated in 10 O.S.2001 § 19, which provides: "[a] parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child." So far as we can determine, this statute had never been applied or interpreted in a reported case concerning parental relocation prior to Kaiser v. Kaiser, 2001 OK 30, 23 P.3d 278, which was decided in 2001.

¶ 6 Kaiser was an appeal of an order which prohibited a mother, upon peril of losing custody, from moving the child from Oklahoma City, Oklahoma, to a suburb of Washington, D.C., where the mother had been offered a job which was described as "the opportunity of a lifetime." The Court interpreted § 19 as giving a custodial parent a presumptive right to change the child's residence unless there is a showing of prejudice to the rights or welfare of the child, and concluded, at 2001 OK 30, ¶ 31, 23 P.3d at 286:

The evidence presented below did not support the trial judge's decision restricting mother from relocating under peril of losing custody. There was no showing that [the child]'s welfare was placed at risk by remaining in the custody of his mother; she is unquestionably a fit parent who takes good care of her son and makes reasonable decisions regarding his care. Maintaining father's existing visitation schedule was not a sufficient basis for the denial of mother's relocation. (Emphasis added).

¶ 7 In discussing the effect of a relocation on a change in custody, Kaiser held that the custodial parent's relocation was not by itself a change of circumstances which would justify modification of custody. Under the Court's holding, if the custodial parent is a fit parent, relocation can result in a change in custody only when "the child will be placed at risk of specific and real harm by reason of living with the custodial parent in the new location." Kaiser, 2001 OK 30, ¶ 33, 23 P.3d at 287.

¶ 8 One week after Kaiser was issued, the Court decided Abbott. Once again, the appeal involved a proposed relocation by the custodial parent, the mother, and a motion to change custody based upon such a change filed by the non-custodial parent, the father. The trial court initially announced a ruling in the father's favor, changing custody to him if the mother relocated. Thereafter, the trial court vacated that ruling, and denied the father's motion to modify.

¶ 9 In affirming the trial court's decision, the Court reiterated its application of the "real and specific harm" test which it had crafted in Kaiser for determining when a relocation may form the basis of change in circumstances sufficient to authorize a change in custody. The relocation issue was addressed again, approximately one month before § 112.3 became effective, in Casey, where the Court held, in pertinent part, that:

WHERE THE CUSTODIAL PARENT IS FIT AND THERE IS NO RISK OF REAL AND SPECIFIC HARM TO THE CHILD, THE DECISION TO RELOCATE THE FAMILY RESTS WITHIN THE CUSTODIAL PARENT'S AUTHORITY SUBJECT TO THE TRIAL COURT'S APPROVAL.

Casey, 2002 OK 70, ¶ 16, 58 P.3d at 769. (Emphasis in original).

¶ 10 In Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, 160 P.3d 951, the Court reversed a trial court order which sustained the mother's objection to the father's request to relocate the children in his custody from Oklahoma to New York. In doing so, the Court concluded the trial court improperly placed the burden on the father to prove that the relocation was in the children's best interest, rather than requiring the mother to prove the relocation was not in the children's best interest.

¶ 11 Mahmoodjanloo noted the cases decided before the effective date of § 112.3 and the potential for conflict between § 112.3 and § 19. However, it declined to resolve any potential conflict, because that issue had not been addressed by the trial court, and it was unnecessary because the trial court failed to follow the clear language of the statute placing the burden of proof on the parent objecting to the relocation. We must address that issue here.

¶ 12 Although we concede the Legislature was within its policy-making power to modify the "real and specific harm" test identified in Kaiser, Abbott, and Casey, that test was based on § 19. In adopting § 112.3, it chose not to expressly repeal § 19, along with the interpretive gloss placed upon it by the Court. Without any real analysis, the trial court in this case concluded the old law was preempted by the new statute.

¶ 13 This issue presents a question of law concerning interpretation of these statutes. Our standard of review on this issue is de novo, In re A.N.O., 2004 OK 33, 91 P.3d 646, which standard requires a non-deferential, plenary and independent review of the trial court's legal ruling.

¶ 14 Statutory interpretation is a question of law. The fundamental rule of statutory construction is to ascertain and give effect to the legislative intent, and that intent is first sought in the language of a statute. Fanning v. Brown, 2004 OK 7, 85 P.3d 841. Courts will give the words of a statute a plain and ordinary meaning, unless a contrary intention plainly appears. When the language of a statute is plain and unambiguous, no occasion exists for application of rules of construction, and the statute will be accorded meaning as expressed by the language employed. City of Durant v. Cicio, 2002 OK 52, 50 P.3d 218. We must consider the statute as a whole, not just individual provisions. Bank of Oklahoma, N.A. v. Welco, Inc., 1995 OK CIV APP 43, 898 P.2d 172.

¶ 15 We have reviewed § 112.3 and find nothing in that statute indicating the Legislature's intent to expressly repeal § 19. Interpreting the trial court's order and ruling at trial,² which gave no consideration to § 19, we conclude the trial court determined that § 112.3 repealed § 19 by implication.

¶ 16 However, repeals by implication are never favored, and all statutory provisions must be given effect. Before a repeal by implication may be found, it is necessary for the two legislative acts to be inconsistent and irreconcilable to the extent that they cannot stand together. Rivera v. District Court of Comanche County, 1993 OK 63, 851 P.2d 524.

¶ 17 As noted in Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d at 952, "[t]he right of a custodial parent to relocate to a distant new home with his or her child when that move is opposed by the noncustodial parent is governed by two different statutes: [§ 19] and [§ 112.3]" (emphasis added), and, albeit in dicta,³ that "both statutes deal with the same subject matter." 2007 OK 32, ¶ 12, 160 P.3d at 955. Under the rule of in pari materia, which applies...