In re Hart v. Bertsch
| Decision Date | 25 April 2013 |
| Docket Number | No. 109,711.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,109,711. |
| Citation | 306 P.3d 585 |
| Parties | In re the Matter of Athena N. HART, Plaintiff/Appellant, v. Joseph E. BERTSCH, Defendant/Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
OPINION TEXT STARTS HERE
Appeal from the District Court of Tulsa County, Oklahoma; Honorable Stephen R. Clark, Trial Judge.
REVERSED IN PART, VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS AS DIRECTED.
Todd Alexander, Tulsa, Oklahoma, for Plaintiff/Appellant.
Joseph E. Bertsch, Tulsa, Oklahoma, Pro Se Appellee.
¶ 1 Athena N. Hart (Mother), appeals the April 25, 2011, order of the district court denying her request to relocate her minor child and denying her motion to reconsider that order. We find that the district court erred in denying Mother's motion to reconsider and reverse that order. We vacate the April 25, 2011, order denying Mother's request to relocate finding that Mother satisfied her burden of proving that her proposed relocation was being made in good faith and remand for a determination of whether the relocation is the child's best interest.
¶ 2 At the time of these proceedings, Mother had one child. After three days of trial in May and July of 2009, the district court entered an order of paternity on March 29, 2010, finding that Joseph E. Bertsch (Father) was the biological father of the child and awarding sole custody of the child to Mother. The order also set Father's child support obligation and provided for visitation. On January 28, 2011, Mother notified Father that she intended to relocate with the child to an Air Force base in Delaware where her husband was being transferred. Father filed a timely objection to the proposed relocation. On March 17, 2011, a hearing was held on Father's objection in which the district court found that Mother's proposed relocation was not made in good faith and announced its intention to deny Mother's relocation. Mother filed a motion to reconsider on March 28, 2011. The district court's order denying Mother's request to relocate was filed on April 25, 2011. Mother's motion to reconsider that order was heard on May 24, 2011, and the order denying that motion was filed on July 7, 2011. Mother appeals both the April 25 and July 7 rulings.1 Our dispositionof this case makes it unnecessary to consider Mother's constitutional challenge to the relocation statutes.
¶ 3 This appeal requires review of the district court's interpretation and application of statutes controlling relocation of a minor child. “A legal question involving statutory interpretation is subject to de novo review, i.e., a non-deferential, plenary and independent review of the trial court's legal ruling.” Heffron v. Dist. Ct. of Okla. County, 2003 OK 75, ¶ 15, 77 P.3d 1069, 1076 (). Mother's motion to reconsider will be treated as a timely filed motion for new trial.
A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title. The meaning and effect of an instrument filed in court depends on its contents and substance rather than on form or title given it by the author.
Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 759. The district court's decision on a motion for new trial is reviewed for an abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595, 600. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895.
¶ 4 Two statutes govern the relocation of a minor child by a custodial parent. See Mahmoodjanloo v. Mahmoodjanloo, 2007 OK 32, ¶ 2, 160 P.3d 951, 952. The first statute 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.
10 O.S.2001 § 19 (renumbered as 43 O.S.2011 § 112.2A). The second, 43 O.S.2011 § 112.3 (the Relocation Statute), provides in relevant part:
B. 1. Except as otherwise provided by this section, a person who has the right to establish the principal residence of the child shall notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence as required by this section.
....
G. 1. The person entitled to custody of a child may relocate the principal residence of a child after providing notice as provided by this section unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty (30) days after receipt of the notice.
....
2. A parent entitled by court order or written agreement to visitation with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation.
....
4. A proceeding filed pursuant to this subsection must be filed within thirty (30) days of receipt of notice of a proposed relocation.
....
K. The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.The first statute gives the custodial parent a “presumptive right” to relocate. Kaiser v. Kaiser, 2001 OK 30, ¶ 18, 23 P.3d 278, 282. The second statute requires notice of intent to relocate if the child is to be moved more than seventy-five miles from the child's principal residence for a period of time exceeding sixty days and provides for a hearing procedure if the non-custodial parent objects to relocation. See Galarza v. Galarza, 2010 OK CIV APP 19, ¶ 13, 231 P.3d 694, 698.
¶ 5 The dispositive issue in this appeal is whether Mother satisfied her burden of proving that her proposed relocation was being made in good faith as required by section 112.3(K). The factors required to be considered by the district court in determining a contested relocation are specified in section 112.3(J)(1):
g. the reasons of each person for seeking or opposing the relocation, and
h. any other factor affecting the best interest of the child.
“In reaching its decision regarding a proposed relocation, the court shall consider” these factors whether the issue is the custodial parent's good faith in relocating or the best interests of the child. 43 O.S.2011 § 112.3(J)(1).
¶ 6 Mother was the only witness who testified at the hearing on Father's objection to relocation. Her testimony can be summarized as follows: At the time of the hearing, the parties' child was seven years old and in the second grade. Although the March 29, 2010, paternity order granted sole custody of the child to Mother, she had been his custodian and principal caretaker since he was born. The visitation schedule established in the paternity order allocated the child's time between the parties on vacations, holidays and special days, and provided that Father would have regular visitation every other weekend and every Wednesday evening. The relationship between Mother and Father is not good. Since the March 2010 paternity order, Father has taken the child for each of his allocated visitations except one. However, on at least five occasions in the last year Father has not returned the child at the end of his visitation period. On these occasions, Mother sought the help of the police, but when Father refused to turn the child over to the police, Mother was told her only recourse was to consult her attorney and go back to court. Father has not asked for additional visitation. Mother has never denied Father visitation with the child since the child was born.
¶ 7 Mother testified that the reason for the relocation was so that she and her child could be with Mother's husband. Mother testified that it would be in the child's best interest if he did not see his parents fighting all the time, which would be a benefit from less frequent custody exchanges if she moved to Delaware, but that was not the reason she decided to move. The parties' child is currently covered by Mother's husband's military health insurance. Prior to that, they did not have health insurance. Mother married her current husband on October 31, 2010. She had known him for approximately five years before that and they had been living together since...
To continue reading
Request your trial
-
In re King
...The interpretation and application of the relocation statutes are subject to de novo review. Hart v. Bertsch, 2013 OK CIV APP 52, ¶ 3, 306 P.3d 585, 587. An appellate court must affirm the trial court's determinations of the relocating parent's good faith and the children's best interests u......
- Yancey v. Timothy (In re Adoption of Boy L), 110,775.