In re King

• Decision Date: 25 November 2015
• Docket Number: No. 113,628.,113,628.
• Citation: 371 P.3d 1139,2016 OK CIV APP 31
• Parties: In re the MARRIAGE OF Andrea Nicole KING, Petitioner/Appellee, and Daniel Zebulon King, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

371 P.3d 1139

2016 OK CIV APP 31

In re the MARRIAGE OF Andrea Nicole KING, Petitioner/Appellee,

and

Daniel Zebulon King, Respondent/Appellant.

No. 113,628.

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

Nov. 25, 2015.

Richard O'Carroll, Sharisse O'Carroll, O'Carroll & O'Carroll, Tulsa, Oklahoma, for Petitioner/Appellee.

P. Gae Widdows, Blake Feamster, Widdows Law Firm, P.C., Tulsa, Oklahoma, for Respondent/Appellant.

BRIAN JACK GOREE

, Presiding Judge.

¶ 1 This is an appeal of a trial court's order granting a custodial parent's request to relocate the parties' minor children from Oklahoma to Texas. The order is affirmed. It was neither contrary to law nor against the clear weight of the evidence.

¶ 2 Andrea Nicole King, now Gage, (Mother) and Daniel Zebulon King (Father) were married in 2005. They divorced in 2011 and the court awarded them joint custody of their two minor boys. Mother began training for a career as an ultrasound technician and she was offered a job in Wyoming. In 2012, she served a notice to relocate to Wyoming with her children. Father objected, and Mother withdrew her request after the job did not materialize.

¶ 3 The next year, Mother served another notice of relocation. This time she proposed to move with the children to Stephenville, Texas to work at the hospital where her parents are both employed. Father objected again and the court denied Mother's request. The trial court concluded that the relocation statute is not applicable in cases of joint custody.

¶ 4 Later that year both parties filed motions to modify custody. The court observed that the parties were unable to communicate or set aside their differences. The judge terminated joint custody and awarded sole custody to Mother. Several weeks passed and Mother served another notice to relocate to Stephenville. After a three-day trial the court granted Mother's request. Father filed this appeal.

I.

¶ 5 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 unless they were contrary to law or against the clear weight of the evidence. Galarza v. Galarza, 2010 OK CIV APP 19, ¶ 12, 231 P.3d 694, 698 ; Harrison v. Morgan, 2008 OK CIV APP 68, ¶ 30, 191 P.3d 617, 625.

II.

¶ 6 Father argues that the trial court should have denied relocation because Mother abused the system by circumventing the requirements of the relocation statute. He contends that Mother's third proposed relocation was in bad faith, as evidenced by the two previous relocation notices which she filed when she and Father had joint custody of the children.

¶ 7 It is Father's position that the relocation statute prohibits a parent from relocating a child's residence while the parents share joint custody. Because we disagree with Father's premise, we hold the trial court committed no error in granting the relocation over Father's abuse-of-the-system allegation.

¶ 8 We examine the language of two statutes to determine whether a parent with joint custody may initiate relocation of a child. According to 43 O.S. 2011 § 112.2A

, “a parent entitled to the custody of a child” has a right to change his residence. That right is subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. Id. Mother is “a parent” and there is nothing unclear or ambiguous about § 112.2A.

¶ 9 The procedure for a parent to change a child's residence is outlined at 43 O.S. 2011 § 112.3

. Subparagraph G provides: “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.” § 112.3(G)(1) (emphasis added). Section 112.3 includes definitions. “A ‘person entitled to custody of or visitation with a child’ means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement.” § 112.3(A)(3).

¶ 10 Pursuant to the definition in § 112.3(A)(3)

, we examine whether Mother was entitled to custody by virtue of a court order. A decree of dissolution of marriage was entered by the court on December 15, 2011. The court found Mother and Father were parents of the two minor children and it awarded joint custody. The decree identified Mother as “the primary care parent.” We conclude that Mother was a person entitled to custody by virtue of that court order within the meaning of § 112.3(A)(3). She qualified as “the person entitled to custody” pursuant to § 112.3(G)(1) and was therefore authorized by the statute to provide a notice of relocation to Father.

¶ 11 We hold that when a court orders joint custody, 43 O.S. 2011 § 112.3

permits either parent to initiate the relocation procedure unless the order provides otherwise.¹ Mother did not act in bad faith merely by pursuing relocation while she and Father shared joint custody.

III.

¶ 12 Father argues that Mother's purpose in relocating was to alienate the children from him. The statute specifies that the relocating person has the burden of proof that the proposed relocation is made in good faith. § 112.3(K)

. 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. Id. Father claims Mother did not sustain her burden to prove her proposal to relocate the children to Stephenville was made in good faith.

¶ 13 Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. 25 O.S. 2011 § 9

.

¶ 14 Mother presented evidence that she sought to relocate to Texas to pursue a job opportunity. The prospective job had a slightly lower wage rate than her current part time job, but it was full time and included health insurance benefits. She was invited to live without cost in a house provided by her relatives. She testified her living expenses would be reduced by more than $1,000 per month. She also presented evidence that Stephenville is a desirable community with many opportunities for the children to enjoy sports and other activities they enjoy.

¶ 15 Father argued that relocating was in reality another step in Mother's patterned strategy to separate him from his boys. He pointed to several examples: Mother failed to give him the schedules for the children's extracurricular activities and then criticized him for not attending them; Mother scheduled the children for excessive activities that naturally diminished Father's visitation time; Mother prevented Father from accessing the children's school or medical records; Mother failed to identify Father as an emergency contact on school, daycare, and medical forms; and Mother proposed a substantial decrease of Father's visitation.

¶ 16 The trial transcripts bear out the court's earlier finding that the parties have difficulty communicating and setting aside their differences. However, the clear weight of the evidence does not support Father's claim that Mother's proposed move was designed to thwart his relationship with their children. We hold that Mother's testimony concerning her motivation, purpose, and intent for relocating with the children to Stephenville, Texas supports a finding of good faith.

IV.

¶ 17 After Mother presented sufficient proof that she proposed the children's relocation in good faith, the burden shifted to Father to show relocation would not be in their best interest. § 112.3(K)

. In reaching its decision regarding a proposed relocation, the court shall consider the factors set forth at § 112.3(J)(1), as well as any other factor affecting the best interest of the child. § 112.3(J)(1)(h).²

¶ 18 Father challenges the form of the court's order. He suggests the order should be reversed because it does not contain a written evaluation that analyzes each of the eight subsections of the statute. This is required, explains Father, according to Harrison v. Morgan, 2008 OK CIV APP 68, 191 P.3d 617

. In Harrison, the Court of Civil Appeals stated, “when applying the best interest test under § 112.3(J)(1)(a)–(h), the trial court is to consider and weigh all the evidence, if any, relevant to the specific topic for each factor and decide whether each factor weighs either ‘in favor of relocation,’ ‘against relocation,’ or is neutral.” Harrison, ¶ 27.

¶ 19 The issue in Harrison was the sufficiency of the evidence to support the trial court's determination, not the form of the order. No language in § 112.3

requires trial courts to make express written findings. The court's decision is presumed to include a finding favorable to the successful party upon every fact necessary to support it. Carpenter v. Carpenter, 1982 OK 38, ¶ 10, 645 P.2d 476, 480.³

V.

¶ 20 Father also challenges the validity of the notice of relocation served upon him by Mother. The person entitled to custody of a child may relocate the child after providing statutory notice, unless the parent who is entitled to notice files, within 30 days, a proceeding seeking to prevent the relocation. 43 O.S. 2011 § 112.3(G)

. Father argues he did not receive the notice required by statute. He claims the trial court should have granted his motion to dismiss. Mother counters that Father not only had actual notice of the proceeding, but he exercised his rights by filing a timely objection, and therefore he was not prejudiced. Mother is correct.

¶ 21 The statute in question is 43 O.S. 2011 § 112.3(C)(2)

. It lists the following items of information that must be given, if available, with the notice of intended relocation of...