In re Marriage of Duke, 012220 OKSC, 116221

Docket Nº:116221
Opinion Judge:EDMONDSON, J.
Party Name:In Re THE MARRIAGE OF: JOSHUA JOE DUKE, Petitioner/Appellee, v. PAIGE TAYLOR DUKE, Respondent/Appellant.
Attorney:Barry K. Roberts, Norman, Oklahoma, for Appellant. Jill M. Ochs-Tontz, Guthrie, Oklahoma, for Appellee.
Judge Panel:CONCUR: WINCHESTER, EDMONDSON, and KANE, JJ; REIF, S.J., and BARNES, S.J. DISSENT: GURICH, C.J., (I would vacate and remand for a new trial.); DARBY, V.C.J.; and KAUGER, J. (joins Gurich, C.J.); and COMBS, J. (joins Gurich, C.J.). ¶ 43 RECUSED: COLBERT, J. ROWE, J.
Case Date:January 22, 2020
Court:Supreme Court of Oklahoma

2020 OK 6

In Re THE MARRIAGE OF: JOSHUA JOE DUKE, Petitioner/Appellee,


PAIGE TAYLOR DUKE, Respondent/Appellant.

No. 116221

Supreme Court of Oklahoma

January 22, 2020



Barry K. Roberts, Norman, Oklahoma, for Appellant.

Jill M. Ochs-Tontz, Guthrie, Oklahoma, for Appellee.


¶ 0 A divorce proceeding was filed in the District Court of Logan County where husband and wife each requested sole custody of their minor child. Trial was held and the Honorable R. L. Hert, Special Judge, of the District Court of Payne County, assigned to hear the matter pronounced a decree which awarded sole custody of the parties' minor child to the father. Mother appealed and filed a motion to retain the appeal in the Supreme Court. The appeal was retained by a previous order of the Court. We hold: (1) Application of the clear-weight-of-the-evidence appellate standard to determine if a child custody order was based upon insufficient evidence must be reviewed on appeal by reviewing all of the evidence used by the trial court when adjudicating custody; (2) When all of the evidence used by the trial court to adjudicate custody is not before the appellate court the clear-weight-of-the-evidence standard may not be applied, and if the parties had an opportunity to preserve the assigned appellate error in the trial and appellate record but failed to do so, the District Court's order must be affirmed.


¶1 Mother challenges an order awarding sole custody of the parties' minor child to the child's father. The parties had an opportunity in the trial court to present their evidence and make a complete trial court record and a complete appellate record. The record we are presented with is incomplete and does not contain the guardian ad litem reports used by the trial court. We decline to expand our traditional appellate review beyond its appropriate sphere and make independent credibility determinations on appeal. Mother's assignment of error challenging the conclusion it was in the child's best interests for custody to father requires us to apply a clear-weight-of-the-evidence standard which in turn requires all of the evidentiary record to be before us. All of the record is not before us and we must affirm the District Court's decree.

I. The Case

¶2 Joshua Duke filed a petition seeking divorce and sole legal custody of the parties' child. He requested Logan County standard visitation for the mother, Paige Duke. Mother filed a response and petitioned for a divorce, sole legal custody of the parties' child, and an award for child support conforming to the Oklahoma Child Support Guidelines. She requested father be given Logan County standard visitation. A trial was held in the District Court of Logan County. 1 The parties' minor child was represented in the District Court by a guardian ad litem (GAL).

¶3 The trial court's decree dissolved the marriage, recognized the parties' previous agreement concerning marital debts and assets, and determined the ownership status of certain properties and assets which had been disputed. The trial court determined joint custody was not proper because mother resided in Weatherford, OK, and father resided in Guthrie, OK. The court awarded sole custody of the parties' six-year-old child to the child's father. The trial court made several additional provisions including, but not limited to, sale of the parties' residence, child support, visitation, the child's medical insurance, dependency status of the child for income tax purposes, and a ratio for splitting the child's medical costs which were not covered by the father's insurance.

¶4 Mother appealed and she raised four assignments of error in her amended petition in error which relate to (1) child custody and visitation, (2) the best interests of the child and child support, (3) division of marital property and marital debt, and (4) a catchall provision stating additional assigned error will be presented in her appellate brief. Mother's brief-in-chief contains two propositions with cited authority: (1) The trial court erroneously used an expunged domestic abuse criminal conviction involving mother's fianc© when awarding custody to the father; and (2) The trial court erroneously awarded child custody to the father when the evidence showed the best interests of the child required custody to be awarded to the mother.

¶5 The District Court's journal entry states it is in the best interests of the mental, physical, and moral welfare of the minor child that father be awarded sole physical and legal custody of the parties' child. The journal entry states in part: "The parties have demonstrated that joint custody is not a possibility. Because the distance shared parenting is not feasible." The journal entry also states the following. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED testimony was presented that the fianc©e [sic] of the Respondent was convicted of domestic abuse. Apparently, he received a deferred sentence and the case was dismissed and the record expunged. He was not called to testify about the matter or provide any evidence of how he fulfilled any condition of his deferred sentence. I do not know if the legislature intended to exclude a deferred sentence from, consideration under 43 O.S. 112.2, however, it certainly intended to protect children. If a rebuttable presumption exists that it is not in the best interest of the child to grant custody to the Respondent who either lives with or intends to marry and live with a person who has been convicted of domestic abuse within the last five years, the presumption was not rebutted. If not a conviction for the purpose of the statute, it still concerns me. No evidence was presented which alleviate my concerns and establish that living in a house with him could not or would not place the child in jeopardy.

Considering all the evidence presented and the law, I find that it is in the best interest of the child of the parties, [name deleted], be granted to the Petitioner with Respondent to have Logan County Standard Visitation.

¶6 The issues raised by mother on appeal are limited to those briefed with supporting authority 2 in the brief-in-chief and which are properly supplemented in her reply brief. 3 Issues raised by father in support of the District Court's decree are limited to the legal propositions raised in his answer brief with supporting authority and which relate to the facts shown in the appellate record. 4

II. Standard of Review

¶7 Mother's briefs on appeal raise issues concerning the construction and application of five statutes: 12 O.S. §2608; 22 O.S.2011 §60.1; 22 O.S.Supp.2016 §19; 43 O.S.2011 §112.2; and 75 O.S.2011 §22. Father's answer brief adds 12 O.S. §2104 for additional consideration. Generally, an issue of law is presented by questions concerning the application and construction of a statute to an uncontested fact, and de novo appellate review is used by the Court. 5 Mother filed a motion for this Court to retain the appeal in this Court for an appellate decision and her motion was granted. Her motion argued an "intolerable conflict" exists between two statutes, 43 O.S.2011 § 112.2 and 22 O.S.Supp.2016 § 19. The issue whether statutes conflict when applied to an uncontested fact presents a question of law concerning interpretation and application of the statutes, and the Court uses de novo review to adjudicate the alleged conflict. 6 The arguments by both mother and father on the application and construction of these statutes present issues of law reviewed de novo by this Court.

¶8 Generally, an appellate court affirms the decree unless it is (1) against the clear weight of the evidence, or (2) contrary to law, or (3) contrary to established principles of equity. 7 Appellate review of a decree in equity determines whether (1) an error of law occurred of such magnitude that it created a decree "contrary to established principles of equity jurisprudence," 8 or (2) the decree is contrary to the weight of the evidence. 9 The decree contrary to the weight of the evidence refers to the specific adjudication the trial court in equity was required to make, an equitable discretion exercised to determine the best interests of the child for the purpose of child custody. 10 A finding by the trial court in an equity proceeding carries with it a finding of all facts necessary to support the finding which may be found in the evidence considered by the trial judge. [11] If the appellate record is sufficient to show a decision has been made contrary to the weight of the evidence, then this Court will render the decree in equity the trial judge should have rendered. 12

¶9 Mother challenges the trial court's award of...

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