In re the Marriage of Annotra Guyton

Decision Date30 June 2011
Docket NumberNo. 107,275.,107,275.
Citation2011 OK CIV APP 92,262 P.3d 1145
PartiesIn re the Marriage of Annotra GUYTON, Petitioner/Appellee,v.Victor GUYTON, Respondent/Appellant.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

OPINION TEXT STARTS HERE

Released for Publication by Order of the Court

of Civil Appeals of Oklahoma, Division No. 2.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Donald L. Deason, Trial Judge.AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.Annotra Guyton, Oklahoma City, Oklahoma, Pro Se.Melinda Nelson, Judith A. Ridgeway, The Ridgeway Law Office, Norman, Oklahoma, for Respondent/Appellant.JOHN F. FISCHER, Vice–Chief Judge.

¶ 1 Victor Guyton (Father) appeals a default judgment in favor of Annotra Guyton (Mother) granting Mother's motion to modify custody and support, and motion to determine outstanding support. Father also appeals the district court's denial of his motion to reconsider and vacate the default judgment, the court's denial of his motion to modify child support, and the award of attorney fees to Mother. These appeals have been consolidated for review by this Court. Mother failed to file a responsive brief and the cause stands submitted on Father's brief only.1 After reviewing the record and applicable law, we affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.

BACKGROUND

¶ 2 The parties were divorced in March 2006 and awarded joint custody of their two minor children. On February 27, 2007, Mother filed a motion to modify child custody and support. On September 28, 2007, Mother filed a motion to determine outstanding support due and owing, seeking child support arrearage (medical) and reimbursement for medical bills incurred prior to the divorce. The motions were set for hearing on November 5, 2007. However, at the pre-trial conference on October 18, 2007, Father's attorney appeared unprepared and without a pre-trial conference statement as required by the pre-trial order. The district court granted Mother's motions by default, over Father's attorney's objection, apparently relying on Rule 5(j), Rules for District Courts, 12 O.S. Supp.2010, ch. 2, app. 1, as a sanction for Father's failure to comply with the pre-trial order. As a result, the court terminated joint custody, awarded sole custody to Mother with visitation for Father,2 and modified Father's child support by adding an “in kind” benefit to Father's gross monthly income based on the fact that Father had moved in with his mother and was therefore allegedly receiving an $800.00 per month benefit by not paying living expenses. The district court also by default judgment ordered Father to pay past due support in the amount of $1,587.00, and $4,120.50 for outstanding medical expenses incurred prior to the divorce during the birth of one of the couple's minor children.

¶ 3 Father filed a motion to reconsider and vacate the default judgment on October 29, 2007. On November 13, 2007, Mother filed an application for attorney fees. The district court heard arguments on the motion to reconsider and vacate, and the motion for attorney fees on February 1, 2008. The court denied Father's motion to reconsider and vacate the default judgment, and granted Mother's motion for attorney fees in the amount of $9,075.00. On February 4, 2008, Father filed a motion to modify his child support obligation after being terminated from his job. A hearing was held on April 4, 2008, after which the district court denied Father's motion.

¶ 4 Father appeals the orders granting Mother's motions, the denial of his motion to reconsider and vacate, the award of attorney fees to Mother and the denial of his motion to modify child support.

STANDARD OF REVIEW

¶ 5 The standard of review of a district court's denial of a motion to vacate a default judgment is abuse of discretion. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 20, 987 P.2d 1185, 1194; Nu–Pro, Inc. v. G.L. Bartlett & Co., Inc., 1977 OK 225, ¶ 6, 575 P.2d 618, 619. “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. In Oklahoma a decision on the merits of a case is favored over a default judgment. See Ferguson Enters., Inc. v. H. Webb Enters., Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482.

¶ 6 Proceedings to modify child support are equitable in nature and we will affirm the district court unless the decision is against the clear weight of the evidence. See Merritt v. Merritt, 2003 OK 68, ¶ 7, 73 P.3d 878, 881–82; Huchteman v. Huchteman, 1976 OK 174, ¶ 27, 557 P.2d 427, 430. “Modification of child support is within” the district court's discretion, and the court's judgment “will not be reversed on appeal unless it is against [the] clear weight of [the] evidence, or erroneous in [a] respect that causes injustice and reflects abuse of discretion.” Huchteman, 1976 OK 174, ¶ 27, 557 P.2d at 430. “An award of attorney fees is addressed to the sound discretion of the trial court which decision will not be disturbed absent an abuse of discretion.” Wood v. Wood, 1990 OK CIV APP 49, ¶ 18, 793 P.2d 1372, 1376. See Phillips v. Phillips, 1976 OK 165, ¶ 10, 556 P.2d 607, 610.

ANALYSIS

I. Modification of Visitation

¶ 7 After Father failed to respond to her motion to modify custody and support and her motion to determine outstanding support, Mother filed a motion for default judgment on October 16, 2007.3 Mother's motion for default was to be heard two days later at the pre-trial conference on October 18, 2007, along with Mother's other motions. The district court stated at the hearing on Father's motion to reconsider and vacate that its decision to enter default judgment against Father at the pre-trial conference was based on Rule 5(j), Rules for District Courts, 12 O.S. Supp.2010, ch. 2, app. 1, which provides that a party's [f]ailure to prepare and file a scheduling order or pretrial order, failure to appear at a conference, appearance at a conference substantially unprepared, or failure to participate in good faith may result in ... sanctions” that include default judgment.4 The district court's journal entry of judgment states that the “order shall be entered by default,” finding a “permanent, material, substantial change in circumstances,” and that “this change in conditions necessitates restrictions on father's contact with the children.” The court determined that pursuant to Rule 5 it had authority to enter a default judgment against Father when counsel for Father appeared at the pre-trial conference substantially unprepared. 5

¶ 8 Father contends the district court's entry of the default judgment is contrary to the Oklahoma Supreme Court's decision in White v. White, 2007 OK 86, 173 P.3d 78. In that case the Court held it was an abuse of discretion to grant a motion to modify a custody order in a contested proceeding based on Rule 4(e), Rules for District Courts, 12 O.S.2001, ch. 2, app. 1, without having a hearing on the merits of the motion. Id. ¶ 12, 173 P.3d at 80–81. The Court held:

[U]nder no circumstances may a modification in custody based on a change of circumstances be effected unless the requesting parent demonstrates: 1) a permanent, substantial and material change in circumstances; 2) the change in circumstances must adversely affect the best interests of the child; and 3) the temporal, moral and mental welfare of the child would be better off if custody is changed to the other parent as requested.

Id. ¶ 8, 173 P.3d at 80 (citing Daniel v. Daniel, 2001 OK 117, ¶ 17, 42 P.3d 863, 869). “In applying the three-prong test ‘the best interests of the child must be a paramount consideration of the trial court when determining custody and visitation.’ The interests of judicial economy are by far secondary.” Id. ¶ 9, 173 P.3d 78 (quoting Daniel, 2001 OK 117, ¶ 21, 42 P.3d at 871). The Court specifically held that: Rule 4e was not intended to provide a mechanism for default judgment in a request for modification of child custody.” Id. In reversing the district court's custody order in White, the Supreme Court found that “the trial court failed to consider the requirements that must be met before a child's custody can be modified based on the assertion that the circumstances of the parties have changed materially since a prior custody order.” Id. ¶ 7, 173 P.3d 78. White holds that in every custody decision “the parents and the child are entitled to an adversary hearing regarding the existence of a material change in circumstances and a considered determination of the best interests of the child.” Id. ¶ 12, 173 P.3d at 80–81. And, [t]he best interests of the child can be determined only by the evidence actually presented in an evidentiary hearing.” Id. “A request for modification of child custody is far too important to be decided essentially by default under the Rules for the District Courts. Those rules were established to facilitate the adjudication of civil disputes, not to impede the presentation of evidence in a child custody dispute.” Id. ¶ 13, 173 P.3d at 81. We find the Court's analysis equally applicable to Rule 5 and consistent with the determination on the merits required of similarly important motions.6

¶ 9 In this case, however, the district court determined White was inapplicable because Father did not contest termination of joint custody. We agree that the White holding indicates that it was intended to apply to contested custody proceedings. Father acknowledges that he stipulated to the termination of joint custody and award of custody to Mother with visitation for Father. Father does not contest the termination of joint custody on appeal and the district court's order is affirmed in this respect.

¶ 10 However, based on the reasoning in White, Father does challenge the district court's order to the extent that it imposed visitation...

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